1

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

U.S. DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES 

AND WORKER HEALTH

+ + + + +

MEETING

+ + + + +

FRIDAY

APRIL 23, 2021

+ + + + +

The Board met telephonically at 1:00 

p.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

CLAIMANT COMMUNITY 

JIM KEY

DURONDA M. POPE

CALIN TEBAY

DIANNE WHITTEN
2

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

DESIGNATED FEDERAL OFFICER

MICHAEL CHANCE
3

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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

I. DOL Query on COVID (continued) ........... 17

II. Asbestos - Report and Recommendation..... 50

III. Six Minute Walking Test -

Report and Recommendation ................... 72

IV. Board Comments on DOL Impairment......... 82

V. New Business ............................ 117

VI. Board Process and Next Board Meeting.... 123

VII. Close of Meeting ...................... 149
4

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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

(1:06 p.m.)

MR. CHANCE: Okay. Good afternoon, 

everyone. My name is Michael Chance, and I'd 

like to welcome you today's teleconference 

meeting of the Department of Labor's Advisory 

Board on Toxic Substances and Worker Health. I'm 

the Board Designated Federal Officer or DFO.

Today's date is April 23, 2021. This 

is day two of a two-day conference. Yesterday we 

had a very productive session, and I'm hopeful 

that today will prove the same. As always, we 

appreciate the work of our Board members in 

preparing for this meeting and for their 

forthcoming deliberations. We are scheduled to 

meet today from 1:00 p.m. to 5:00 p.m. Eastern 

Time. This meeting is a virtual conference.

On the line, I have Carrie Rhoads from 

Department of Labor and Kevin Bird from SIDEM, 

our logistics coordinator. Please be patient 

with any technical issues or extra time that 

might be required to take WebEx documents up and 
5

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

down. We are trying to run the meeting as 

efficiently as possible while keeping everyone 

safe and socially distant. I think the meeting 

yesterday went rather smoothly.

Regarding meeting operations, as youall know, timing, we have a break today as 

indicated on the agenda. Please do not 

disconnect from the call during the break. For 

Board members, please just put your phone on mute 

for the break and unmute when we resume. This 

will make it easier on Kevin, making sure 

everyone can participate in the discussion and 

keep things moving along.

Copies of all meeting materials and 

any written public comment are or will be 

available on the Board's website under the 

heading meetings, and the listing there for this 

meeting and yesterday under April 22 and 23, 

2021. Documents will also be up on the WebEx 

screen so everyone can follow along with the 

discussion.

The Board's website can be found at 
6

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

dol.gov/OWCP/energy/regs/compliance/advisoryboard

.htm.

If you haven't already visited the 

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

clicking on today's meeting date, you'll see a 

page dedicated entirely to today's meeting. The 

web page contains publicly available materials 

submitted to us in advance. We will publish any 

materials that are provided to the subcommittee. 

There you will also find the agenda for the day 

meeting and instructions for participating 

remotely.

If you are participating remotely, as 

we all are, and you are having a problem, please 

email us at energyadvisoryboard@dol.gov

If you're joining the WebEx, as we all 

are, please note that the session is for viewing 

only and will not be interactive. Please also 

note that the phones will be muted for nonadvisory board members. Call-in information has 

been posted on the advisory Board's website. So 

the public may listen in, but not participate in 
7

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

the Board's discussion during the meeting. 

Unlike yesterday, there is no public comment 

period today.

A word about meeting transcripts and 

minutes. The transcript and minutes will be 

prepared from today's proceedings. During Board 

discussions today, as we were on a teleconference 

line, please speak clearly enough to the 

transcriber to understand you.

When you begin speaking, especially at 

the start of the meeting, please state your name 

so we can get an accurate record of the 

discussions. Also, I'd like to ask our 

transcriber to please let us know if you are 

having any issues with hearing anyone or 

understanding anyone during the recording.

As DFO, I see that the minutes are 

prepared and ensure they're certified by the 

Chair. The minutes of today's meeting will be 

available on the Board's website no later than 90 

calendar days from today, per FACA regulations. 

If sooner, they will be published before that 
8

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

day.

Also we'll be publishing verbatim 

transcripts, which are obviously more detailed in 

nature. Those transcripts should be available on 

the Board's website within 30 days. As 

yesterday, I would like to remind advisory Board 

members that there are some materials that you 

have been provided with in your capacity as a 

special government employee and members of the 

Board, but you're not --- and those materials are 

not for public disclosure and cannot be shared 

and 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 personal identifiable information such 

as names, addresses, specific facilities if a 

case is being discussed, or a doctor's name.

Thank you for bearing with me as I had 

to read all of that into the record. At this 

time, I would convene this meeting of the 
9

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

Advisory Board on Toxic Substances and Worker 

Health. I will now turn it over to Dr. Markowitz 

for introductions, and then you -- we'll 

reconvene with the discussion regarding COVID 

that began yesterday afternoon. And we thank the 

Board members for expediting that research and 

review because it was something that was 

important to the program to investigate. So 

Steven, please take it away.

CHAIR MARKOWITZ: Thank you. Welcome 

to all. Welcome to -- welcome back to the Board 

members, the DOL staff and leadership, SIDEM and 

the public. We had a good meeting yesterday, and 

I expect we'll have a good meeting today. Let's 

do the introductions and then we'll move on from 

there. Let me just call out your names to 

facilitate this. So Dianne Whitten?

MEMBER WHITTEN: I'm here.

CHAIR MARKOWITZ: And could you just 

very briefly introduce yourself?

MEMBER WHITTEN: Dianne Whitten, I'm 

with the Hanford Atomic Metal Trades Council. 
10

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

I'm the recording secretary, also a member of the 

IBEW 984, radcon tech at Hanford for 33 years.

CHAIR MARKOWITZ: Thank you. Mr. 

Tebay? If you're here.

PARTICIPANT: I don't think he signed 

on yet.

CHAIR MARKOWITZ: Okay. Ms. Pope?

MEMBER POPE: Good afternoon. Duronda 

Pope. I am the director of United Steelworkers 

Emergency Response Team, but also a former worker 

of Rocky Flats. Worked there for 25 years.

CHAIR MARKOWITZ: Thank you. Mr. Key?

MEMBER KEY: Yes. Good afternoon, 

Board members, DOL staff, and public listeners. 

My name is Jim Key, K-E-Y. I am the president of 

the United Steelworkers Atomic Energy Workers 

Council in Washington, D.C., and also acting 

president of USW Local 550. I have 47 years at 

the Paducah Gaseous Diffusion Plant. I'm very 

intimate with the EEOICPA program in itself. One 

of my 37 Freedom of Information Act requests that 

I filed with the Department of Energy resulted in 
11

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

the smoking gun that the DOE doctor had consulted 

the contractor and said at least 300 workers 

should be tracked because of their exposure.

The contractor refused to inform the 

workers, for fear that the union would demand 

hazardous duty pay. I provided Congressional 

testimony on September 23rd of 1999 to the House 

Oversight and Investigation Committee on the 

investigation at Paducah. I then spent nine of 

the next 12 weeks in Washington lobbying each 

member of Congress. That resulted in the 

successful passage of EEOICPA in 2000.

I'm honored to have been appointed to 

this Board and look forward to improvements to 

the program that the Board can make which 

directly affects those workers who have been 

impacted. Thank you.

CHAIR MARKOWITZ: Thank you, and I 

thank you for that history actually. That was 

the 1960 memo, right? That you're referring to?

MEMBER KEY: Yes, sir. That is 

correct.
12

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

CHAIR MARKOWITZ: Yes. Okay. Dr. 

Mikulski.

MEMBER MIKULSKI: Good afternoon. 

Marek Mikulski. Director of the former DOE 

Worker Medical Screening Program in Iowa. 

Occupational environmental health, University of 

Iowa.

CHAIR MARKOWITZ: Dr. Goldman?

MEMBER GOLDMAN: Hello. I'm Dr. Rose 

Goldman. I'm the former founding director for 

the occupational environmental health program at 

Cambridge Health Alliance and an occupational and 

environmental medicine physician, medical 

educator and associate professor of medicine at 

Harvard Medical School and associate professor of 

environmental health at the Harvard T.H. Chan 

School of Public Health.

CHAIR MARKOWITZ: Dr. FriedmanJimenez.

MEMBER FRIEDMAN-JIMENEZ: Hi. I'm Dr. 

George Friedman-Jimenez. I'm an occupational 

medicine physician and an epidemiologist. And 
13

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

I'm the founding director of the Bellevue/NYU 

Occupational Environmental Medicine Clinic in New 

York City and assistant professor of population 

health medicine and environmental medicine at NYU 

School of Medicine.

CHAIR MARKOWITZ: Okay. Dr. Van Dyke.

MEMBER VAN DYKE: Hello. Mike Van 

Dyke. I'm an associate professor at the Colorado 

School of Public Health, and I'm an industrial 

hygienist by training.

CHAIR MARKOWITZ: Thank you, Dr. 

Silver?

MEMBER SILVER: Ken Silver, associate 

professor of environmental health at East 

Tennessee State University. I have worked on DOE 

issues for a little over 20 years, both in the 

realm of community service. On the ground in 

northern New Mexico, organizing with the workers 

and their families. Mr. Key's remarks reminded 

me that I shared that very congressional hearing 

from 1999 with a lot of the families so they 

could get up to speed on the issues.
14

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

I gave Senate HELP testimony in 2007. 

I've also done scholarly work on the ethics of 

genetic testing for beryllium and how to use 

historical documents at DOE sites to draw 

meaningful scientific inferences.

CHAIR MARKOWITZ: Thank you. Mr. 

Catlin.

MEMBER CATLIN: Good afternoon. It's 

good to be here. My name is Mark Catlin. I'm an 

industrial hygienist. Currently semi-retired and 

doing some consulting. And in the past I've done 

work and training at Hanford and at Los Alamos.

CHAIR MARKOWITZ: Dr. Bowman?

MEMBER BOWMAN: Yes. I'm Dr. Aaron 

Bowman. I am professor and head of the School of 

Health Sciences. We have programs relevant here 

in occupational and environmental health, 

industrial hygiene, health physics and 

toxicology. I am a toxicologist as well. Thank 

you.

CHAIR MARKOWITZ: And I'm Steven 

Markowitz, occupational medicine, physician, 
15

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

epidemiologist, head of the Barry Commoner 

Center, University of New York. And I run the 

largest former worker medical screening program 

within the complex since 1997.

Okay. Just a couple of notes before 

we start on our first topic. One is, you know, 

towards the end of the day we're going to discuss 

what we're going to do over the next several 

months and when our next meeting might be there. 

I have a couple of initial ideas on working 

groups that we might form or reform over the next 

period of time. And I wanted to introduce those 

ideas very quickly, just so people had a chance 

to think about it before 4:30 when we discuss the 

details.

One would be a group that follows up 

on this issue of the assessment of the quality, 

objectivity, and consistency of the industrial 

hygiene and medicine input into claims. That's 

one of our core tests.

We made a recommendation. The 

department is making some changes. It's ongoing 
16

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

and I thought it would be useful to have a small 

group that follows, tracks that, and comes to the 

next meeting with some information, some better 

ideas, about how we might provide useful advice 

to the department.

And the other working group I thought 

we might have is one that actually discusses the 

public comments from yesterday or from 

previously. And we do track the public comments. 

Ms. Rhoads summarizes them in an Excel 

spreadsheet. So we have ready access to short 

summaries. And of course we have transcripts of 

those as well, in the written form, of any 

comments that are submitted. And we try to 

inject the content of those public comments when 

it's pretty relevant to what we're otherwise 

discussing or when those comments are items that 

we should be discussing. But I think it'd be 

useful actually if we had a small group that took 

a look at these things and, particularly given 

the comments yesterday, and follows up on them.

Those are my initial ideas. I don't -
17

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

- let's postpone further discussion of that, if 

that's okay, until the end the afternoon so we 

can get down to our business. Any comments or 

questions so far?

Okay. So Kevin, if you could bring up 

my slide, PowerPoint slide 19. Okay. So we 

looked at this yesterday. This was the 

recommendation. The threat recommendation. And 

let me point out that it says that the Board 

recommends that any chronic health condition that 

is listed by the CDC as being associated with 

severe COVID-19 disease, by meta-analysis. 

Systematic reviews, cohort studies, case control 

studies, cross-sectional studies, case series, 

mixed evidence that'd be considered to be 

presumed to lead to symptomatic COVID-19 disease. 

That is the diagnosis of symptomatic COVID-19 

disease as a consequence of those chronic health 

conditions when it follows or coincides with the 

onset of those conditions.

So I changed this. We had discussed 

maybe putting in the third line from the bottom, 
18

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

severe, and then I think we got back to saying, 

symptomatic. So this is the formula that I came 

up with for us to look at today. And I think, 

you know, basically just to kick off the 

discussion, you know, think about it, if there 

are two people, one with chronic obstructive 

pulmonary disease and one who does not have COPD. 

Otherwise they're the same age, race, et cetera. 

That the person with COPD who acquires COVID 

infection is more likely to have some symptoms 

from the acquisition of that infection.

Then there is the person who does not 

have COPD, and it's regardless of how severe 

those symptoms are. Even a mild case, you know, 

cough, some shortness of breath, but doesn't 

require hospitalization, it's not considered 

serious.

Is that the more likely scenario? If 

someone has a background of COPD, than if they 

don't. And it's that kind of case, I think, that 

this recommendation captures. In addition to 

obviously more severe COVID disease. So the 
19

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

floor is open for comments, questions.

MEMBER GOLDMAN: This is Rose Goldman. 

I think this is good, and I think for the public 

that was listening and the concern that arose. 

There's a important distinction here which I 

think we should put in the record which is, the 

source of getting the list of the conditions, 

derived from the CDC's definition related to 

severe COVID disease. However, that's just the 

source of what are the conditions. But the 

trigger for giving the worker compensation with 

consideration is that you don't have to have the 

severe disease, but that you just have one of 

these conditions and that you just have any kind 

of symptomatic. So it doesn't necessarily have 

to be severe. So I think this paragraph captures 

that. Thanks.

MEMBER MIKULSKI: I agree. This is 

Marek Mikulski. I agree entirely. I felt that 

this severity of the disease, that is too much 

specificity, and there's many organizations out 

there defining severe disease in their own ways, 
20

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

including the levels of these actuations. The 

degree of infiltration is certainly symptomatic. 

There's more leeway and is much more than 

friendly towards the ---

MEMBER BOWMAN: This is Aaron Bowman. 

I just -- I think I'm mostly in agreement, but 

just a counterpoint here and it relates to the 

fact that the published scientific evidence, to 

back this up, is mostly dependent on an 

assessment of risk of severe illness, which is 

not to say that I don't disagree with the comment 

that this would be reasonable to presume to lead 

to more frequent symptomatic disease.

But given that, you know, we want to 

operate on an evidence-based approach and that 

the evidence here is utilizing that terminology.

Look, I hope this would be considered a friendly 

amendment to this, but that -- let me count 

sentences. I guess there's only two sentences on 

it. The second half of the first sentence, to be 

considered to be presumed -- currently reads, 

considered to be presumed to lead to symptomatic 
21

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

COVID-19 disease. Just given where the evidence 

is coming from, how about saying considered to be 

presumed to lead to symptomatic to severe COVID19 disease. To capture that whole range of 

symptomatic to severe cases. And the remainder, 

I think, could stay the same.

CHAIR MARKOWITZ: So I get -- Steve 

Markowitz here. I get your point. The -- and 

I'm not opposed to adding some variant of, if 

you'll forgive the term, variant of that 

language. But what the CDC does is evaluate the 

literature for severe disease. They don't 

comparably evaluate the literature for mild 

disease. And so what's -- the way it reads now, 

it's very easy to apply. You go to the CDC 

website, you look for severe COVID risk factors 

and you find the very table that gives you your 

answers.

MEMBER BOWMAN: Right.

CHAIR MARKOWITZ: So what we could do 

is to say, by the CDC, is being associated with 

severe COVID disease and presumed to be 
22

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

associated with the full spectrum of symptomatic 

COVID disease. We could add that.

MEMBER BOWMAN: Yes. I agree that 

also satisfies the minor concern that I was 

expressing. The lead to the -- I think you said 

that the full spectrum of COVID-19 disease ---

something like that?

MEMBER FRIEDMAN-JIMENEZ: This is Dr. 

Friedman-Jimenez. I've been thinking about this 

since yesterday when I suggested changing severe 

to symptomatic. But in thinking about it, what 

we're really talking about is permanent medical 

impairment due to something related to COVID and 

the underlying, already compensated condition. 

So I think that the two ways that this can happen 

if someone has severe COVID disease with ongoing 

damage to their lungs or heart, or if they have 

what is called now long COVID, which is just now 

being described medically and we don't know a lot 

about it. It's evolving quickly. I think the 

long COVID is going to turn out to be the big 

player here, because this includes all kinds of 
23

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

cardiac, pulmonary, neurologic sequelae, that can 

be -- it looks like they are going to be 

permanent in some cases and will be the medical 

impairment that we'll be talking about. But we 

don't have enough information yet to make a 

presumption, a long-term presumption on this.

So I'm thinking that we should start 

off with a fairly restricted definition here and 

stay with the severe. But as soon as we find out 

enough about long COVID to know what the health 

conditions are that exacerbated or make it more 

likely. Adding long COVID. I don't think we can 

add it yet, but symptomatic COVID is typically a 

short-term, self-limited disease. The majority 

of people, they're sick for a week, two weeks, a 

month, possibly two months.

Often go back to work after a couple 

of weeks. And I don't think this is going to be 

very commonly -- a common scenario for the 

medical impairment, permanent medical impairment 

that would be compensable. So my thought is that 

we should leave it with severe and then revisit 
24

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

this at our next meeting or each next meeting and 

see if there's yet enough evidence to make a 

decision on adding long COVID. Because long 

COVID is really what's going to be the player 

here. Because severe COVID can get better and 

the person who can return to totally normal 

functions within weeks and it wouldn't be 

compensable. It wouldn't make sense for this to 

be a case.

CHAIR MARKOWITZ: This is Steve 

Markowitz. Yes. These are difficult issues. I 

think short COVID -- short non-severe COVID is an 

issue. That it's likely that there will be 

claims for people who are sick for a number of 

weeks and if they're already retired, then they 

will need added healthcare and therefore there 

will be some medical expenses in relation to 

that. So I think that the beauty of your term, 

diagnosis of symptomatic COVID-19 disease, is 

that it is fairly all encompassing. It includes 

the short-term non-hospitalized person who's --

who's pretty ill. It includes hospitalized 
25

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

person, the person who dies. It includes long 

COVID.

Remember what the Department has asked 

us for. Is they're trying to see whether there 

is a solution to the problem of having the 

personal medical position, the private provider 

for the individual patient, having them keep up 

with the literature and making that decision as 

to whether their underlying condition affects the 

symptomatic COVID disease. And that physician is 

not going to be in any better position than we 

are to make that decision. And frankly, it's 

quite likely to lead to a whole variety of 

different opinions which are going to be 

inconsistent.

That is to say, when the department 

can actually get the personal provider to weigh 

in on this issue. So I feel comfortable. I 

understand that the evidence really is mostly for 

severe disease, but the logic is that it should 

also apply to the spectrum of symptomatic disease 

and for the purposes of a compensation program, 
26

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

right? That's what we're talking about. And so 

I felt comfortable with this phrase diagnosis of 

symptomatic COVID-19 disease.

And frankly, weighing not waiting for 

further studies, which I don't know whether 

they'll ever really happen or not, whether people 

are -- if you think about it to look at this 

further, you'd have to compare a group of 

asymptomatic with a mildly asymptomatic -- mildly 

symptomatic and look at their risk factors. And 

you know, we're 14 months into the pandemic, I 

don't think it's been done. I don't know the 

whole literature, but I don't think it's been 

done. And I'm not sure it is going to be done, 

frankly.

MEMBER FRIEDMAN-JIMENEZ: Well there 

are RFAs now for studying long COVID, and they 

will define the risk factors for the continuance 

of symptoms with COVID. Whether the person is 

asymptomatic, mildly symptomatic, or severely 

symptomatic doesn't seem to be a major predictor 

of long COVID ongoing symptoms. Age seems to be a 
27

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

major predictor.

And you know, what I'm worried about 

is that I don't want to see a backlash happen. 

That oh well, we made a wrong decision and now we 

have to change it back and get rid of the whole 

thing. And at a conference several weeks ago, 

there was a talk on COPD as a predictor of long 

COVID, and it seems that it's the peripheral 

eosinophils are low or normal. It is COPD is 

neither a predictor of long COVID nor severe 

COVID only if eosinophils are high, and that's a 

research finding.

It hasn't been replicated yet, but I'm 

thinking that there are going to be findings 

coming like that all the time. And it has to be 

put together in a systematic way to revise this 

presumption. So I think what's important here is 

that there be a mechanism for updating this 

presumption as the evidence becomes available. 

Because evidence is changing by the week or 

month, not like asbestos or other toxin related 

diseases. And so this is a very active topic 
28

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

that is rapidly changing.

So I think we need to be able to 

respond to that in a nimble enough way that we 

can -- we have a mechanism to update this 

recommendation and the presumption.

MEMBER GOLDMAN: This is Rose Goldman. 

I also want chime in. I agree with that. And 

Steven, one thing to consider is, I forget the 

name of the person yesterday, made mention that 

there's not this distinction in terms of what 

they need once the person is diagnosed with 

COVID, this regard should come into play. And 

they're not going to try to do gradations of 

severe or symptomatic.

So I think that's important to just 

keep it in terms of who's going to benefit from 

this as symptomatic. And that even people who 

have a short course of it could be missing work, 

may have extra expenses. So I think it's 

reasonable to compensate them if they were to 

apply for it. But to George's point, just like 

we did with the carcinogens 2A, perhaps the final 
29

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

sentence on this should be that this 

recommendation be updated as new research comes 

out or that we put in a mechanism that this 

recommendation gets updated every, I don't know, 

six months or something like that.

CHAIR MARKOWITZ: This is Steve 

Markowitz. I think that's a good idea. The 

other thing I'd point out is that what we've 

heard is that the program is going to recognize 

symptomatic COVID disease among claimants with 

established claims around recognized chronic 

health conditions. And effectively, if we limit 

-- if our recommendation is that we limit it to 

severe COVID, then intentionally or not, the net 

effect might be, that we're going to end up 

restricting who gets compensated or whose medical 

care gets paid for, for symptomatic COVID 

disease. Now you know, we need to base our 

decisions on what we think the evidence permits 

and reasonable extension of that evidence. And 

so there can be, you know, differences of opinion 

about that.
30

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

But I am concerned that the net effect 

of a more restrictive recommendation is that 

frankly it ends up, you know, restricting the 

people whose COVID disease is recognized by the 

program.

MEMBER SILVER: I -- this is Ken 

Silver. I concur with Dr. Markowitz in setting 

the bar at a low, compassionate level. I 

remember a few years ago my email was on fire 

from the advocates community over a case of a 

gentleman pre-COVID with occupational lung 

disease who was not getting approved for the 

delivery of oxygen to treat his condition and he 

expired before the program approved renewal of 

oxygen to his home.

I think a pretty common scenario for 

occupational lung disease victims in the DOE 

complex is, on doctor's advice they move to a 

lower elevation because of the higher partial 

pressure of oxygen from Los Alamos to Carlsbad, I 

know in one case, or from Denver to the eastern 

plains of Colorado, and they were doing fine.
31

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

So if you'd put yourself in their 

shoes, in their living room, all of a sudden 

there's symptomatic COVID and they want to get 

the approval for oxygen turned back on, and the 

claims examiner might say well you've been 

without it for a few years, we thought you were 

doing well, down there at low elevation this is 

going to take -- they shouldn't have to go 

through that. They should get what they need and 

if it means dying in comfort at home or 

recovering from COVID, that's consistent with 

this being a claimant friendly program.

CHAIR MARKOWITZ: It's Steve 

Markowitz. Actually if -- Kevin or Carrie, if 

you could bring it up so we could change the 

recommendation. I'd like to add Rose's 

suggestion. Well think about it some more. So 

the last sentence will be that the Board intends 

to -- the Board recognizes the need to update 

this recommendation based on the evolving 

scientific and medical knowledge on this topic.

Dr. Goldman, does that capture what 
32

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

you -- or do you want to amend that?

MEMBER GOLDMAN: Well I guess we're 

recognizing it, but perhaps you might want to say 

we recommend the need to review this periodically 

and update it according to the evolving 

scientific. Rather than just recognizing it.

CHAIR MARKOWITZ: Okay. So what if we 

say recognizes the need to periodically review 

and update this. Is that okay?

MEMBER GOLDMAN: That's good for me. 

If it's good for other people, I don't know 

whether --- the issue is do we have to put in a 

minimum time period? As George said, this is 

evolving very quickly. I'm not necessarily 

advocating for it, but to say do we want to say 

that this gets reviewed at minimum every six 

months, which is when we meet, or not? What's 

going to be the trigger?

MEMBER BOWMAN: If I can suggest, this 

is Aaron Bowman, since we can always review it if 

we want to in a meeting, that we put the minimum 

at maybe every year, just so if we recognize that 
33

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

there's really not an update, it doesn't take up 

so much time of our board meeting.

CHAIR MARKOWITZ: At an annual -- at a 

minimum annually, right?

MEMBER BOWMAN: Yes.

CHAIR MARKOWITZ: Okay. Let's get 

back to the point that Dr. Friedman-Jimenez 

raises because this amendment I think helps 

address that point, but it doesn't necessarily 

solve the issue. Doctor --

MEMBER VAN DYKE: Mike. Sorry.

CHAIR MARKOWITZ: Yes. Go ahead.

MEMBER VAN DYKE: This is Mike Van 

Dyke. Realizing I'm an industrial hygienist 

weighing in on medical issues, the conversation 

feels like there's -- everybody's in agreement 

emotionally and conceptually, but it feels like 

that it's the concerns or around terms that are 

not well-defined. Symptomatic or severe, neither 

of which is concretely defined.

Neither of which, I don't think, has 

an ICD 10 code. So would it be better to say 
34

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

something like COVID-19 or COVID-19 sequelae 

requiring medical treatment? Would that be 

cleaner?

MEMBER GOLDMAN: I'm not sure about 

that. I'll tell you that we do a lot of calls 

with COVID patients, and actually my husband came 

out of retirement is calling high risk people who 

have COVID, with or without symptoms, and the 

issue of treatment usually conveys giving a 

medication or something. And there are many 

people that basically you're not really giving 

them anything. They're symptomatic. They can be 

at home. They're not getting remdesivir or any 

of these medications. And you're just trying to 

coach them through the illness, you know, having 

their tea and making sure that if they do get 

sicker, you send them early enough to get care in 

the ER or the clinic.

And so I would say those people who 

aren't getting technical treatment with 

medication are still symptomatic and should --

and may be out of work and should be covered by, 
35

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

you know, the compensation here because they 

might be out of work or they might get triggered 

to maybe not get treatment but to get evaluation 

like a chest x-ray or something. Or to go buy an 

O2 sat meter that they put on their finger.

So I think leaving it, in some ways, 

leaving it general like this, even -- you're 

right. There's not -- what's symptomatic or not 

symptomatic? Is it a headache? You do have a 

checklist, but from the compensation point of 

view, and a person who spoke yesterday, I found 

her name in my notes, maybe she's on, Rachel 

Pond, said that basically the people are going to 

get the test and they are going to compensate 

them if they are COVID positive and they have one 

of these conditions.

So I sort of feel like Steve 

Markowitz. I don't want to over restrict us so 

that we're restricting people getting 

compensated. If we just leave it as symptomatic 

for right now, because there's a difference 

between the criteria for picking which conditions 
36

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

versus who you're going to compensate. And you 

can always choose to compensate people for other 

reasons because you expect that somebody who's 

maybe mildly symptomatic may go on to being 

further symptomatic or long haul. I mean I don't 

think we have to go over all of that here. But 

we could just leave it sort of the way it is, 

which I think is pretty broad. And that would be 

my response because of what treatment really 

conveys.

CHAIR MARKOWITZ: This is Steve 

Markowitz. Yeah, I think the reason why 

symptomatic works is because claims examiners, 

personal physicians can agree when somebody has 

symptoms, can recognize it. And so it's just a -

- it is perhaps a little simplistic, but it is I 

think a very useful term in, you know, in 

evaluating claims.

So Kevin, if you could make a copy of 

this and then paste it below. I want to change 

it to a different version that reflects Dr. 

Friedman-Jimenez's concerns. So that we can 
37

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

compare them. And if I -- before flying, I would 

replace the word, George, you weigh in here, but 

I would replace the word symptomatic with severe.

MR. BIRD: Not that one, right?

CHAIR MARKOWITZ: Yes. So --

MR. BIRD: Sorry, Dr. Markowitz. The 

first or second example of symptomatic in line 4?

CHAIR MARKOWITZ: Both actually. The 

second one is more important. In fact, the 

previous sentence no longer really makes sense. 

You'd have to -- after mixed evidence, you put a 

period and -- no. Okay. You know what? Let's 

just -- I'm sorry. Let's just leave it as it is 

for the moment. That sentence doesn't -- we'd 

have to adjust that sentence, but the idea -- so 

Dr. Friedman, a minute, does that accurately --

MEMBER FRIEDMAN-JIMENEZ: But now the 

sentence doesn't really have a purpose because 

you're saying that the evidence shows that it's 

associated with severe disease, then we presume 

that it leads to severe disease.

CHAIR MARKOWITZ: All right. No. 
38

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

We'd have to change that sentence.

MEMBER BOWMAN: If I could suggest on 

that first --

MEMBER GOLDMAN: I sort of like the

way it was before frankly.

MEMBER BOWMAN: This is Aaron Bowman. 

I just -- all right. On that first -- go back to 

the top version or this version, the top version. 

That first word, symptomatic, there. The 

element is just to capture what it is that the

CDC data is saying and the essence of recognizing 

that.

So what if it said to lead to 

increased severity of COVID-19 disease? That 

covers the span, right? Increased severity. And 

then therefore the statement, the diagnosis of 

systematic disease, as a consequences would make 

sense if there was agreement that the CDC data in 

fact showed that at least due to increase 

severity. Not just severe but increased 

severity.

What do other people think about that?
39

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: I looked 

yesterday for studies that reported that, and I 

couldn't find them. I didn't do a very thorough 

search, but it's a difficult thing to study. 

Whether an infection leads to -- whether an 

underlying condition leads to increased severity 

of a disease. Because it's essentially a 

countered factual situation, where you don't know 

in an individual whether it would have been, you 

know, more severe anyway. And it's a difficult 

study to do because you can't randomize it.

So I haven't found any studies. There 

may be some clever study there that does that, 

but I don't know that we can assume that the 

evidence can be extrapolated in that way.

MEMBER BOWMAN: Does that mean you 

prefer keeping it as is with symptomatic?

MEMBER FRIEDMAN-JIMENEZ: I would, you 

know, my feeling right now. I think Steven makes 

a very good point that we don't want to put a 

damper on people that really should be 

compensated. And the idea here is to be, you 
40

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

know, and in the event of uncertainty, to err on 

the side of compassion. And at this point, you 

know, we're in a really hurtful situation. And I 

think leaving it as symptomatic would be good. 

And then the last sentence, that we periodically 

review it, we can update this as the evidence 

comes out.

So I'm willing to leave it with 

symptomatic rather than severe, and then -- so be 

more inclusive now, and then we'll see what the 

evidence shows. And in the next week or month or 

year, there may be some clear guidance on this. 

Because right now we're sort of in a highly 

uncertain position with regard to this particular 

knowledge gap.

CHAIR MARKOWITZ: Yes. This is Steve 

Markowitz. I recognize the lack of evidence, but 

it's a matter of -- just of judgment. Where if I 

were to say, does the person with COPD who 

acquires this, after all, respiratory viral 

infection, is that person more likely to develop 

respiratory symptoms than someone of the same 
41

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

age, et cetera, who doesn't have COPD? I'd say 

yes. Probably.

MEMBER FRIEDMAN-JIMENEZ: There are 

data on that that were presented a few weeks ago 

in University of Arizona. And what they are 

finding is that if the person has high peripheral 

eosinophil count, then yes, if they have lower or 

normal eosinophil count, then no. That COPD does 

not lead to more severe or more likely severe 

disease. So that's just emerging data that 

hasn't been published yet and hasn't been 

replicated yet. So we really shouldn't base 

policy on it.

But I think that we're covered if we 

have this sentence that says that we periodically 

review and update the recommendation. And make 

it more broad now. I think your point is 

extremely well taken. People will be harmed if 

we use severe. You know, by harmed I mean 

unjustly denied compensation when they really 

would have deserved it. And we may 

overcompensate a few people. I don't think 
42

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

that's going to be a major issue.

From what Rachel Pond was saying 

yesterday, there's not a huge consensus to make 

this as restrictive as possible. So for now 

let's go with a more unrestrictive and inclusive 

criterion and then we'll revisit it as the data 

come out. That's my opinion.

MEMBER GOLDMAN: Yes. And the other 

thing is, what about using the phrase you just 

said, which is considered -- on the first 

paragraph, considered to be more presumed to 

lead, you could say, presumed to be more likely 

to lead to symptomatic COVID disease. I mean 

that's really what it is, what we're talking 

about here. And it's more likely than not, you 

know, that if they have that underlying 

condition, that they're more likely to develop 

some more symptomatic disease. So if you like 

that phrasing, you could put that in.

CHAIR MARKOWITZ: This is Steve 

Markowitz. You can add that. That doesn't 

really change -- the hedge there doesn't change 
43

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

the essential meaning, so that's fine. And as 

far as the language, the other change, the 

subsequent symptomatic to severe or increasingly 

severe, I think it's potentially a little 

confusing for people to have to apply this, if we 

keep the word symptomatic. And you know, 

throughout the paragraph, it just makes it 

simpler.

MEMBER BOWMAN: This is Aaron. I 

concur now.

CHAIR MARKOWITZ: Yes. Okay, so then 

-- so let's -- okay. Is there -- we get to 

debate this further, but we do need a -- I think 

we're at the point where we can entertain a 

proposal to accept this recommendation.

MEMBER VAN DYKE: Excuse me, Dr. 

Markowitz, I have one question that sort of 

doesn't -- quick question.

CHAIR MARKOWITZ: Sure.

MEMBER VAN DYKE: Again, as a nonphysician, so I appreciate my other panelists' 

comments. The phrase, diagnosis of symptomatic 
44

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

COVID-19 disease. Is that is that a clear 

definition that the average physician would know 

what that means and that the department would 

also understand what that means? So it's clear 

that this could be easily documented.

MEMBER GOLDMAN: This is Rose Goldman. 

There -- the symptoms of COVID are also evolving. 

But there's basically a checklist. When 

somebody calls in, I mean we use a checklist if 

they have -- because you have to decide if 

somebody's symptomatic or not, which may actually 

impact whether they're cleared to go to work or 

not. And I think I would say that most 

physicians, if you're paying any attention at 

all, there's a list of common symptoms you don't 

have to have just loss of smell, but headaches 

and fatigue, cough, I mean the list just sort of

expanded.

And I want to see what George and the 

others think. But I mean I think most physicians 

would know what those symptoms are. It used to 

be scripted that you had to have fever. And now 
45

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

it's pretty -- it's just a lit -- there are these 

list of symptoms. The essential list of symptoms 

may even be at the CDC, but --

CHAIR MARKOWITZ: Okay. Thank you.

MEMBER VAN DYKE: Would that also 

include a COVID test? A positive COVID test?

MEMBER FRIEDMAN-JIMENEZ: False 

negatives are quite common. That can be 

problematic.

MEMBER GOLDMAN: Well that's a good 

question, but I understood from Rachel who spoke 

yesterday, that was starts this going is a 

positive COVID test. Now we can't get into when 

you should do the COVID test. If you do a once 

and then you repeat it in five days. And is it a 

PCR test or an antigen test? I don't know that, 

that was our charge to get into this. What I 

understand and Dr. Markowitz can correct me, is 

that this -- the starting point here, is that the 

person has a positive COVID test.

CHAIR MARKOWITZ: Well this is 

Markowitz. Let me just say that, you know, I 
46

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

don't -- interesting questions. I'm sure the 

program is going to encounter significant 

variation in these claims and they're going to 

have to sort things out if they want to come back 

to us with specific questions, as they did with 

beryllium, then we'll be happy to address them. 

But at this level, I don't think we should give 

in to that kind of detail. This advice and then 

be open to providing other advice in the future.

MS. POND: Dr. Markowitz, this is 

Rachel. I agree. I think that if you vote on 

anything that just gets us there to the point of 

you've accepted a positive COVID test. This 

person has the disease, whether it's severe, 

whether it's not severe, that's going to kick off 

whatever treatment they need. So I agree that 

you probably don't need to get into that level of 

detail.

MEMBER FRIEDMAN-JIMENEZ: Can we say a 

physician's diagnosis of COVID-19 disease rather 

than a positive test?

MS. POND: Yes.
47

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: Because we 

keep seeing cases in our clinic of people with 

repeatedly negative RT-PCR tests and even 

negative antibody tests that we are convinced had 

COVID-19 because of their presentation. And so 

physician's diagnosis, I think, can be made even 

in the setting of a negative COVID test.

MS. POND: Yes. I would actually 

leave that up to you guys, who are the experts on 

whether it's COVID or not COVID. But if a doctor 

says it's COVID, then we'll rely on that. That's 

really just the bottom line. We're not going to 

try to -- yes. I think you're right. Don't just 

say positive. If a doctor is saying it's COVID 

and believes it's COVID, then it's COVID.

MEMBER GOLDMAN: Well we don't have 

that in our paragraph, so we're just presuming 

that's right. So we don't have to go into that 

in this paragraph because that's not what you 

asked us.

MS. POND: Correct.

MEMBER CATLIN: This is Mark Catlin 
48

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

again. So I appreciate the discussion, and I 

would support keeping this broader rather than 

more specific. As our focus has been on the 

larger discussion, so --

CHAIR MARKOWITZ: Okay. So is there a 

proposal to accept this recommendation?

MEMBER GOLDMAN: I move to accept it. 

That's from Rose Goldman.

CHAIR MARKOWITZ: Okay. And is there 

a second?

MEMBER POPE: Second.

CHAIR MARKOWITZ: Okay. Let's open. 

The floor is open for discussion. That's further 

discussion.

MEMBER POPE: It's Duronda Pope. I 

like the paragraph with the conference and the 

way it's read. I think that keeping it broad, 

that way captures the burden of proof is always 

on the claimant. And it's hard enough keeping it 

--- it works for me.

CHAIR MARKOWITZ: Thank you. Other 

comments? Okay. Then we should -- we need to 
49

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

vote on this. Ms. Rhoads, you want to do a roll 

call?

MS. RHOADS: Sure. Okay. And this on 

the recommendation that's on the screen as 

amended about the COVID-19 issue. Dr. Bowman?

MEMBER BOWMAN: Yes.

MS. RHOADS: Dr. Friedman-Jimenez?

MEMBER FRIEDMAN-JIMENEZ: Yes.

MS. RHOADS: Dr. Goldman?

MEMBER GOLDMAN: Yes.

MS. RHOADS: Mr. Key?

MEMBER KEY: Yes.

MS. RHOADS: Dr. Markowitz?

CHAIR MARKOWITZ: Yes.

MS. RHOADS: Dr. Mikulski?

MEMBER MIKULSKI: Yes.

MS. RHOADS: Ms. Pope?

MEMBER POPE: Yes.

MS. RHOADS: Dr. Silver?

MEMBER SILVER: Yes.

MS. RHOADS: I don't think Mr. Tebay 

is on, but if you are please let us know. Dr. 
50

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

Van Dyke?

MEMBER VAN DYKE: Yes.

MS. RHOADS: And Ms. Whitten?

MEMBER WHITTEN: Yes.

MS. RHOADS: Okay. Of the 11 Board 

members here, all said yes.

CHAIR MARKOWITZ: Okay. Steve 

Markowitz. So let me thank the Board members for 

on short notice, entertaining this query from DOL 

and, you know, we represent, as always, a 

spectrum of opinions, but we managed to coming up 

with some consensus language which I think helps 

the department. And we're open to helping them 

on this issue further in the future.

Let's move onto asbestos. Kevin, if 

you go to slide 25. Okay. So there's a working 

group on asbestos. Let me recognize Mike Van 

Dyke, Dianne Whitten, Mark Catlin. I'm going to 

speak on behalf of the group initially, they can 

add comments as we move along. The issue of 

asbestos, the Board has been dealing with for a 

number of years and the department has accepted a 
51

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

lot of our recommendations on asbestos. And for 

the sake of time, I'm certainly not going to 

review the evolution of all that. But I do need 

to set the context. Could you go to the next 

slide?

So one of the things -- or actually 

can I move the slides now? I don't have that.

MR. BIRD: I'm happy to give you the 

control, if you'd like it.

CHAIR MARKOWITZ: Sure. Sure. That's 

fine. I don't see them on the left side of my 

screen, but maybe they'll -- maybe it'll appear. 

Okay. Okay. Okay. Fine. So okay. See we 

drafted some language and actually -- so we sent 

this to Board members back in January. So if it 

looks a little unfamiliar, in fact, you have had 

the opportunity to take a look at it. I wanted 

to show the punchline here, where we're heading. 

And then we'll talk about how we got here.

So this is an additional 

recommendation concerning asbestos. And we 

recommend that the contractor for DOL Paragon 
52

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

Technical Services, reevaluate the job titles 

with chemical engineers, industrial health and 

safety engineers, mechanical engineers, and that 

these titles be added to the list of occupations 

presumptively exposed to asbestos under the 

program.

We request access to the generic 

profiles including the asbestos generic profile 

as cited in the PTS report. And then finally, we 

recommend that the DOL clarify. Now DOE jobs 

corresponds to the job title, maintenance and 

repair general helper, are classified within the 

same, and whether they are linked to asbestos.

So I'll show you this again for us to 

take a look at, but let me just present the next 

slide. Oh, I see. I'm sorry. I got this.

So what we did, I think I see this may 

have been the last Board term, I can't quite 

remember, but DOL has an established list of job 

titles that they recognize as being presumptively 

exposed to asbestos. And most of those are 

skilled trades, either maintenance or 
53

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

construction trades, and plumbers, pipe fitters, 

electricians, sheet metal workers and the like. 

And the question we were addressing was should 

this list be extended? Are there other job 

titles that for which there should be a 

presumption of asbestos exposure?

And so John Dement kind of took the 

lead on this in the last board. What we did was 

look at national -- U.S. national data from 

what's called the National Occupational Mortality 

Survey. And we looked at the most specific 

asbestos related disease, malignant mesothelioma 

is a cancer of lining of the lung or the abdomen. 

And we looked at that one because most people 

that have mesothelioma have had significant prior 

asbestos exposure. So it serves as a marker for 

a job title as like -- very likely having 

asbestos exposure in the past. And so these are 

the results of using this surveillance data over 

a 15 year period. 1999 to 2014.

And you can see on the left, various 

job titles. And then what's key is the fourth 
54

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

column, the PMR column. And what that is, is 

that's the measure of risk we're looking at it. 

It's the -- what PMR stands for proportionate 

mortality risk and essentially what it is, is if 

you take, say, insulators and you look at what 

percentage of -- you have a list of the causes of 

death. How many insulators died from what causes 

in a certain time period. And you look at the 

percentage that died from mesothelioma, and you 

take the percentage among the insulators who died 

from mesothelioma and compare that to the 

percentage of everybody else who dies from 

mesothelioma. And you just take a ratio of 

those.

And if you find out that 5 percent of 

insulators died from mesothelioma but in general 

in everybody else, only 1 percent die from 

mesothelioma, then we say that the insulators 

have a 5 to 1, fivefold increased risk of dying 

from mesothelioma. In the PMR, however, we 

multiply that by 100. So that's why you see very 

high numbers in the PMR. So in fact, the 
55

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

insulators, they have a 35.39 fold increased risk 

of mesothelioma. And we multiply that by 100 and 

come up with a PMR of 3539. Very, very high risk 

of mesothelioma.

So anything, any PMR above 100 is 

elevated. Now whether it's statistically 

significant is a different issue. And we 

addressed that in the two columns on the right of 

this chart. This isn't the moment to discuss 

confidence intervals so I won't do that, but what 

this shows and this isn't every job title. These 

are just the job titles in descending order of 

PMR for mesothelioma. They go down to a PMR of 

250. On the bottom, the welders and cutters, 

their PMR for mesothelioma is 250, which means 

that 2.5 total increased risk of mesothelioma, 

and that is statistically significant.

In fact, all of these elevations were 

looked -- all these PMRs are statistically 

significant. Because that's the way we're 

presenting the data. This table is actually 

much, much longer. But -- and there were many 
56

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

occupations which do not have an increased risk 

of mesothelioma because they don't have asbestos 

exposure. But I'm just telling you the top ones 

with the demonstrated risk.

Okay. Next slide. So we sent that to 

DOL. We said, you know, take this into 

consideration -- I'm sorry, I can't operate the 

slides. You can take this into consideration 

when we look at the list of presumptively exposed 

to asbestos. Their contractor Paragon, wrote a 

very nice report discussing these issues and this 

was provided to us late last year I think. I 

don't quite remember the date.

And so what they did was accept some 

of our recommendations. If you can see here 

towards the bottom, they accepted to add or at 

least they advised DOL to add certain 

occupations. Stationary engineers, precision 

instrument and equipment repairers, heating, 

ventilation, air, HVAC mechanics, and 

firefighters to the list of presumptively exposed 

to asbestos. These are important trades. 
57

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

They're probably quite numerous actually across 

the complex. So this was a good thing.

Well they, however, argued against 

some other, a lot of the other occupations, 

actually. For a number of reasons and the 

recommend -- our draft recommendation is to add 

back some of the occupations they rejected. So I 

just want to spend a minute until we understand 

their logic. And this is paraphrased directly 

from the PTS reports.

They said that they argued against 

presuming asbestos exposure for certain 

occupations when one of -- one or more of these 

four positions obtained. One is that asbestos 

doesn't appear in the occupation of the SEM. The 

two job titles in the NOMS. That's the table I 

just showed you. They encompass work in diverse 

industries that may have limited, uncertain 

relevance to work at the DOE sites.

Or job titles that may not have 

widespread exposure to asbestos across many job 

settings. Or the occupations are infrequent at 
58

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

Department of Energy. Personally I think a lot 

of that, a lot of what they say makes sense.

Obviously if job titles don't exist at 

DOE, there's no need to add to the presumptively 

exposed list. And likewise, if there are certain 

job titles that don't -- that may have an 

increased risk of mesothelioma, but probably 

don't have widespread risk across those job 

titles across industries, maybe they shouldn't be 

added either.

So -- but I think that those arguments 

don't work for certain occupations. So if the 

PMR is very high, above 250, that means that the 

risk is quite significant in that occupation. 

And in that occupation, if there are a 

substantial number of mesothelioma cases, which 

we defined as 30 or more, that's -- it could be a 

different number, but that's a lot of cases, and 

if the occupations are found within the DOE 

complex, under those conditions, then I think 

that the arguments that PTS makes are not all 

that persuasive.
59

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

So let me get concrete just to make 

this real here. So I've taken the same chart 

that I showed before, right, and it's various 

occupations. And you see the PMR column, the 

insulators appear at the top, very high PMR and 

they're in descending order. And so the ones 

that are highlighted blue are some of the ones 

that were rejected by PTS, and we completely 

agree. I don't think that there are too many 

marine engineers in the complex and architects, 

there may be some, but they have a variety of 

different -- I don't think we can assume they 

have asbestos exposure in the complex. And 

likewise, ship captains and mates, they do not 

seem relevant.

So those are examples. And by the 

way, I don't think that we ever really said who 

should be included in the list. We said use 

these data in your considered revisions of the 

list.

So those blue ones are -- may have 

elevated mesothelioma rates, but they're probably 
60

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

not highly relevant to the complex. Now the ones 

in green, highlighted in green, those are the 

ones that PTS agrees with should be added to the 

presumptively exposed list by Department of 

Labor. And so it was the HVAC, we see precision 

instrument and we see stationary engineers.

Now the ones in yellow, those are of 

interest because PTS didn't agree that they 

should be added, but we think they probably 

should be added. And you notice, first of all, 

they had a quite significant elevated PMRs for 

chemical engineers. It's 449 meaning they have a 

4.5 fold increased risk. And there was 30 

mesothelioma deaths in that group, so it wasn't, 

you know, a small number.

And likewise, if you'd go down towards 

the bottom, you see industrial health and safety 

engineers and mechanical engineers. Again, the 

PMR is above 250, and the number of deaths is 30 

or more. And I think it's a reasonable 

interpretation to say that, mind you, when we 

look at these job titles, chemical engineers, 
61

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

industrial engineers, mechanical engineers in the 

NOMS data, that is across all industries.

So that is not -- and the DOE's 

complex is very heterogeneous in the work 

processes, but obviously they don't reflect the 

full spectrum of industry and the country. But 

the fact that those three job titles have a fair 

number of mesothelioma cases, and a significantly 

elevated PMR suggests that it's not an isolated 

niche, an isolated industry, within those job 

titles that is producing a risk. It's not a 

small -- for instance, in thinking about chemical 

engineers, it's not a specialty use of chemical 

engineers that is likely leading to that level of 

risk and those number of cases, across that job 

title.

And the same comment would be true for 

the industrial health and safety engineers, the 

mechanical engineers. Chances are there's fairly 

broad exposure to asbestos, not necessarily 

everyone, but fairly broad exposure to asbestos 

in those job titles in many different industries 
62

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

in the U.S.

And so that's summarized here in this 

slide here. And the three job titles, we think 

that given these criteria, should still be added 

to the to the programs list. And so that 

addresses that concern. But there's one other or 

actually two other concerns on the PTS document. 

Which is -- and this is an excerpt from their 

report. They describe generic profiles for 22 

individual work processes. And then they list 

these processes.

And this is speaking about the 

asbestos exposure profile. I looked at this list 

and many familiar processes are there but some --

and I've seen at the bottom, janitor, laundry, 

and presentation seemed to be on this generic 

profile for asbestos but they're not included in 

the presumptively exposed list.

So the request from the Board would be 

simply can see those profiles. I don't think 

they're available on the SEM, but in any event, 

can we take a look at them. And then finally, 
63

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

the last part of the recommendation is that 

there's a job classification called maintenance 

repair general helper. In the NOMS data it shows 

increased mesothelioma risk. And it just isn't -

- that's a broad job title and it's just not 

clear how the title is treated within the 

complex. I'm sure it varies from one site to the 

next. And so we just are asking for 

clarification about that and whether -- however 

that job title is effectively defined, whether 

they are linked to asbestos exposure in this 

area.

So that's pretty much all I have to 

say. Anybody have a comment, questions? Any 

member of the working group have some things that 

I forgot to say or got wrong?

MEMBER VAN DYKE: Dr. Markowitz, this 

is Mike Van Dyke. I think you did an excellent 

job of very succinct description of what we 

talked about.

CHAIR MARKOWITZ: Thank you.

MEMBER WHITTEN: This is Dianne and I 
64

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

agree. Very nice job. Thank you.

CHAIR MARKOWITZ: So for people who 

aren't in the working group, do you find this 

evidence and this point of view, persuasive? Are 

there any aspects of logic here that aren't --

that don't make sense or aren't clear, or you 

don't agree with?

MEMBER GOLDMAN: This is Rose Goldman. 

I have a question though about -- since I wasn't 

part of that original conversation. Are you 

using this as a way to identify people who have 

had asbestos, so that for any asbestos related 

disease that might come up like lung cancer, or 

other cancer other, you know, laryngeal, other 

asbestos related cancers, you could go back and 

say because they had this, we will assume that 

they had asbestos exposure versus saying anybody 

who has mesothelioma and had any of these, we 

will assume that it's asbestos related.

And the reason I ask that is I think 

that if you're addressing any employees who have 

mesothelioma, that's so strongly asbestos related 
65

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

as you noted. And there's also issues of 

bystander asbestos, which is very well documented 

among custodians and isn't related to cigarette 

smoking. So then you really get into this low 

dose bystander exposure. So that I think for 

those who have mesothelioma, there's a very 

strong, compelling motion here to relate it to 

asbestos exposure even if it was low dose and 

bystander versus for other more general illnesses 

like lung cancer for example. Then going back 

and saying, well, how much are we going to say 

they had asbestos exposure, which might be low 

dose and how much that's contributing to them 

getting that condition. So that's -- I'm sorry 

for being wordy. Just sort of asking how you're 

using this, but I thought it was very good way to 

go back to that table 3.

CHAIR MARKOWITZ: Yeah. So -- It's 

Steve Markowitz. Thanks for asking that 

question, actually. It's the first of your 

choices. The idea is that what are the job 

titles that should be added to the list that, you 
66

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

know, DOL has had for a long time. About job 

titles that we recognize, we can presume had 

significant exposure to asbestos for the purposes 

of mesothelioma, lung cancer, asbestosis, pleural 

plaques, in other words, it's not defined -- the 

entry point isn't defined by disease.

Now the bystander comment is 

interesting. I show this because chemical 

engineers, you know, they may not put down in 

their Occupational Health Questionnaire that they 

were exposed to asbestos. Likewise, mechanical 

engineers. Because, you know, the chemical 

engineering may be nearby when the mechanic is 

scraping the gaskets, or the pumps that broke or 

the valves, removing the packing. They may be 

nearby. They may have bystander exposure. In 

fact, this table suggests that it's probably 

pretty common that they have such exposure and 

that it's significant, meaningful from the risk 

of disease.

And I think that the SEM, you know, 

probably doesn't -- we think the SEM probably 
67

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

doesn't say a whole lot about bystander exposure. 

And so it's important if we're -- like asbestos 

for bystander exposure is recognized such a welldocumented root of exposure for significant risk 

of disease, that titles like this be added to the 

list. I think that answers your question.

MEMBER GOLDMAN: Well the reason, 

also, that I ask that just an addendum, is that a 

small amount of bystander exposure might not lead 

to asbestosis because you need much more, but 

somewhat bystander exposure or washing out 

clothing as we know, or take-home clothing, the 

bystander lower dose exposure that does not lead 

to pleural plaques or asbestosis has certainly 

been related to an increase in mesothelioma.

CHAIR MARKOWITZ: Well, you know, it's 

-- there's still the issue of duration latency. 

Those are in the procedure manual is minimum 

requirements. And so, you know, there are those 

other issues about, sort of the significance of 

the exposure beyond just presumption, still need 

to be worked at and in the claims evaluation. So 
68

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

yeah. Other comments? Questions?

So then let's move on to consideration 

of this recommendation, and let me read it. We 

recommend that Paragon Technical Services 

reevaluate the job titles of chemical engineers, 

industrial health and safety engineers, and 

mechanical engineers, and that these titles be 

added to the list of occupations presumptively 

exposed to the asbestos under EEOICP --- and the 

-- should be removed, but we'll take care of 

that.

We request access to the generic 

profiles, including the asbestos genetic profiles 

cited in the PTS report. And finally, we 

recommend the DOL clarify how DOE jobs correspond 

to the job title maintenance and repair general 

helper, by classifying within the SEM whether 

they linked to asbestos exposure.

So does someone want to propose that 

we accept this recommendation?

MEMBER FRIEDMAN-JIMENEZ: This is Dr. 

Friedman-Jimenez. I move that we accept this 
69

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

recommendation.

CHAIR MARKOWITZ: Thank you. Is there 

a second?

MEMBER CATLIN: Yes. This is Mark 

Catlin. I second.

CHAIR MARKOWITZ: Thanks. Okay. So 

the floor is open for further comments, 

questions, suggested amendments.

MEMBER SILVER: Hi. This is Ken 

Silver. I haven't really reviewed the existing 

list of occupations on the presumptive list the 

DOL has. Where I see engineer, I think of a 

slight class distinction.

At some DOE sites, the engineer is the 

guy with a degree and the technician maybe has a 

community college degree. So they're not the 

engineer or chemical engineer, they're the 

chemical technician. And the history is that the 

technicians did the dirty work.

And have you seen any awareness on the 

part of DOL, that if someone says in the OHQ and 

all their employment records say they were health 
70

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

and safety technician that, that might be 

interpreted to include them as that health and 

safety engineer?

CHAIR MARKOWITZ: This is Steve 

Markowitz. I can't, you know, can't answer that 

question. I'm trying to look up the --- trying 

to get a copy of the existing list to see where 

the technician -- I know we look at the 

technician within the NOMS, and its relevance to 

asbestos, because we're aware of the concerns 

you're mentioning. I just don't recall exactly 

what's on the current list, but I'm trying to 

look it up.

MEMBER SILVER: It may be an issue for 

another day, but I just wanted to, you know, put 

it out there.

CHAIR MARKOWITZ: Yeah. I think we 

should clarify that on another day. Yes. Other 

comments, questions? Okay. So let's take a 

vote. Ms. Rhoads, if you want to lead the --

MS. RHOADS: Okay. Then this is on, I 

guess it's slide 35, the recommendation that's in 
71

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

there.

MEMBER BOWMAN: Dr. Bowman?

MS. RHOADS: Yes.

MS. RHOADS: Dr. Catlin?

MEMBER CATLIN: Yes.

MS. RHOADS: Dr. Friedman-Jimenez?

MEMBER FRIEDMAN-JIMENEZ: Yes.

MS. RHOADS: Dr. Goldman?

MEMBER GOLDMAN: Yes.

MS. RHOADS: Mr. Key?

MEMBER KEY: Yes.

MS. RHOADS: Dr. Markowitz?

CHAIR MARKOWITZ: Yes. Yes.

MS. RHOADS: Dr. Mikulski?

MEMBER MIKULSKI: Yes.

MS. RHOADS: Ms. Pope?

MEMBER POPE: Yes.

MEMBER SILVER: Dr. Silver?

MEMBER SILVER: Yes.

MS. RHOADS: Mr. Tebay I still don't 

think is on, but if you are, please let us know.

Dr. Van Dyke?
72

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER VAN DYKE: Yes.

MS. RHOADS: And Ms. Whitten?

MEMBER WHITTEN: Yes.

MS. RHOADS: Okay. Again, 11 yeses 

and one is not here.

CHAIR MARKOWITZ: Okay. Thank you. 

We're going to take our break a couple of minutes 

early. Then we're going to run back so we can 

get to the six-minute walk test. In 10 minutes, 

so twenty of three.

(Whereupon, the above-entitled matter 

went off the record at 2:27 p.m. and resumed at 

2:43 p.m.)

CHAIR MARKOWITZ: Okay. It's Steve 

Markowitz. We're up to our discussion about the 

six-minute walk test. This actually is a 

response to some queries from Department of Labor 

to assist them in certain aspect of impairment 

evaluation and this will be led by Dr. FriedmanJimenez.

MEMBER FRIEDMAN-JIMENEZ: Okay. Thank 

you. Can you -- okay, there it is. Okay. The 
73

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

next slide, please. Good. All right. The 

background here is that people with lung diseases 

that are attributable to occupational causes and 

compensated by the EEOICPA program have varying 

degrees of medical impairment. And the question 

is raised how to use the AMA medical guides to 

medical impairment to assign levels of impairment 

to each individual claimant and, generally, what 

we do in occupational medicine, we'll use these 

guides from the AMA to assign level of impairment 

to people for their particular ailment. We use 

the 5th edition of the guides, which in many 

people's opinion, is less problematic than the 

6th edition.

So after a pretty thorough review of 

the literature, in our opinion, what we're 

recommending for permissible testing 

methodologies is using the VO2 max or VO2 peak as 

an estimate of VO2 max. In a pulmonary function 

lab on a test it does pulmonary function exercise 

testing. However, the six-minute walk test is 

raised because the cardiopulmonary exercise tests 
74

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

are not readily accessible to many patients.

Next slide, please. This is the table 

in the AMA guides that shows the different 

classes of impairment. Class 1 being normal or 

no impairment, Class 4 being 51 to 100 percent 

impairment of the whole person. And on the lefthand side, you can see the pulmonary function 

test. FVC is forced vital capacity, FEV1 is 

forced expiratory volume in one second. Then the 

ratio on those two, DCO, is diffusing capacity of 

carbon monoxide, and VO2 max is this exercise 

test that we're talking about. So these are the 

five different tests that are used, the so-called 

objective criteria, for determining the 

impairment classification.

Class 3, for example, is 26 to 50 

percent impairment and requires that any of the 

four elements FEV1, FVC, FVC -- FEV1 over FVC, 

DCO, or the VO2 max be within the ranges that are 

given in that column. So that determines the 

classification unless any one of those five would 

classify the person at a higher level of 
75

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

impairment. So the table, the logic of the 

table, is that the impairment is the highest 

level determined by any of those five pulmonary 

function tests. 

So the question becomes, how do you 

measure VO2 max. The cardiopulmonary exercise 

test is recommended by the American Thoracic 

Society and European Respiratory Society and 

others as the gold standard for estimating the 

VO2 max. Resting PFPs and cardiopulmonary 

exercise tests often yield discrepant results 

when evaluating impairment due to occupational 

lung diseases. And there are, I think, 

reasonably good data to show that for 

determination of respiratory impairment, the 

cardiopulmonary exercise test has advantages over 

the pulmonary function test.

And the study that was done actually 

in the late '80s in asbestos-exposed shipyard 

workers, the pulmonary function test had high 

rates of both false positives and false negatives 

in the impairment ratings and similarly high 
76

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

false positive and false negative rate and 

especially high rates of indeterminate impairment 

ratings. In other words, they couldn't come to a 

rating just based on the PFTs. When you compared 

it with the full evaluation that included 

pulmonary function test, cardiopulmonary exercise 

test, other clinical information, physical exam 

history, and chest x-ray, electric cardiogram.

So the exercise test is pretty clearly 

superior to the pulmonary function test if you're 

just going to choose one test. The problem is 

that exercise testing requires a qualified 

pulmonary function lab that is highly 

experienced, has recently done, in the last year, 

at least 25 or 50 tests, depending on who you 

read. And these labs may not be accessible to 

claimants around the U.S.

The CPT, the exercise test, can 

estimate a VO2 max in most athletes, in some 

people of normal physical fitness, and in only a 

minority of people with respiratory impairment. 

So in most people, the exercise test yields a VO2 
77

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

peak and not VO2 max. However, studies have 

shown that the VO2 peak is acceptably close to 

the VO2 max in people that can do both. And we 

can extrapolate that to people with pulmonary 

impairment. So we're willing to accept the VO2 

peak. 

So the question raised by the DEEOIC 

is that what is the best way to estimate this VO2 

max or, in this case, VO2 peak. And we reviewed 

the literature quite extensively. 

And next slide, please. We looked 

very carefully at the studies of the six-minute 

walk test, 6 MWT which had been reviewed 

extensively by the European Respiratory Society 

and American Thoracic Society Committee. They 

published a Technical Standard in 2014, Holland 

et al., that provided instructions how to do the 

test in a standardized way and assure the quality 

of the test.

Next slide, please. So the six-minute 

walk test has been quite well studied for a 

variety of patients mostly with cardiac 
78

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

disorders, heart failure, and such, but a fair 

number of studies with lung disorders, COPD and 

asbestos-related lung disease. And it is more 

repeatable, actually, than the cardiopulmonary 

exercise test. It has very good repeatability 

and reproducibility. It's safe and precise to 

predict the mean VO2 max or group. I will get to 

that in a minute.

And the systematic review concluded 

that it's valid, it's reliable, and it's robust 

to measure functional exercise capacity in adults 

with chronic respiratory disease. The systematic 

review also concluded that the relationship 

between the six-minute walk distance, and either 

the VO2 peak or peak work, was moderate to strong 

and consistent across patient groups with COPD 

and interstitial lung disease.

Next slide, please. The six-minute 

walk test measures peak VO2, VO2 peak, which is 

an acceptable estimate of the VO2 max, which is 

either not achievable or sometimes not clinically 

advisable because it's a maximal exercise test. 
79

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

You have to really push yourself to your maximal 

cardiopulmonary limit, and it's not advisable in 

some patients.

Next slide, please. So a group 

published in 2010 an equation, Ross et al. 

published this equation, mean VO2 equals 4.948 

plus 0.023 times the mean six-minute walk 

distance in meters. So this equation was derived 

from the pooled data from 11 different studies 

including over 1,000 patients with a variety of 

cardiac and pulmonary disorders.

Another equation which had been given 

to us, to the program, from the American College 

of Sports Medicine. We looked into the 

derivation of that equation and it seems to be 

based on a very, very small number of athletic 

people that were studied in a lab in the '60s and 

'70s and really did not have the evidence base 

that this equation has. This equation has the 

largest patient group of any of the equations 

that had been proposed.

So the authors of the Ross study did 
80

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

say that this equation is better used for groups. 

In other words, that's why it says mean sixminute walk distance. If you have a group of 100 

people doing the test you can get the mean VO2 

max, or VO2 peak, from the mean six-minute walk 

distance. But they caution that the mean gives 

somewhat imprecise results. I'm sorry. The 

equation gives somewhat imprecise results if you 

use individual six-minute walk distance rather 

than a mean.

However, we looked at the data and it 

doesn't seem that it gives biased results. In 

other words, it may overestimate the VO2 max in 

some cases, and it may underestimate in just as 

many cases, but it doesn't overestimate more than 

it underestimates or vice versa. So we think 

that it's acceptable accuracy for clinical use. 

We recognize it's not perfect and it will lead to 

erroneous estimates of VO2 max in a small 

percentage of cases. However, it won't 

overestimate more than it underestimates from 

what we can tell based on the data.
81

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

So next slide, please. So what we're 

recommending is that this equation be used in --

actually there's still an error on this equation. 

It should not say mean peak VO2, it should just 

say peak VO2. So what we're recommending is 

using this equation: peak VO2 equals 4.948 plus 

0.023 times six-minute walk distance. In other 

words, if the person walks 300 meters in six 

minutes, you use 300 meters for that equation.

So that'll give an estimate of VO2 max 

that can be used in table 4 --- 512 to classify 

impairment. So of all of the options that we 

looked at, and we looked at them all, this is the 

best that we see. So what we recommend then is 

either doing a cardiopulmonary exercise test, if 

that's accessible, but we suspect that in many, 

if not most, claimants it will not be accessible 

because the labs are not -- not many around the 

country that are qualified to do this. Or the 

six-minute walk test, which is quite well studied 

and well standardized and can be done by most 

physicians in their medical facility without 
82

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

specialized laboratory equipment. So that's our 

recommendation. And so I'll end there and open 

the floor to discussion.

MEMBER MIKULSKI: I think -- this is 

Marek Mikulski, before we go into a discussion on 

this, I wanted to thank Dr. Friedman-Jimenez for 

taking a lead on this topic. It seems his 

research and an overall guidance will help us see 

through this recommendation to the end. This is 

not an easy topic. There's very little known and 

very few resources available that will guide this 

recommendation either way, and I do feel very 

strong about this recommendation based on the 

scientific evidence that we had reviewed in 

preparation for that.

MEMBER FRIEDMAN-JIMENEZ: Thank you. 

Dr. Mikulski. So does anyone have any thoughts, 

questions, comments, critiques, or 

recommendation?

CHAIR MARKOWITZ: This is Steve 

Markowitz. Just, I support what Dr. Mikulski 

just said about Dr. Friedman-Jimenez's work and 
83

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

his work on this. Just a side note, the group 

looked at the American College of Sports 

Medicine's equation, which is the one that I 

think DOL gave us, in the, something like, 9th 

edition of the textbook. And the report was 

delayed by the group in part because we were 

waiting for the 11th edition to come out and 

hoping that it might provide some clarity on this 

equation and it kept being delayed and delayed.

It finally came out. They used the 

unchanged equation from the 9th edition. And 

then we looked back several -- I think back to 

the 6th edition and found the equation that was 

still unchanged. So it took a while to unearth 

exactly where this had come from, but the group 

succeeded. So are you saying that --

MEMBER FRIEDMAN-JIMENEZ: The equation 

was based largely on multiple trials of three 

marathon runners, one of whom was the author of 

the paper at Harvard. And so it was really based 

on a very -- and then a small number of other 

subjects, 9 or 11 other subjects. It was a tiny 
84

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

sample. And that was the equation that was in 

the American College of Sports Medicine, which we 

really did not feel comfortable recommending.

So this equation is far better 

supported by evidence and, actually, I have to 

say Dr. Mikulski really helped sort out the 

history of this and finding the old references 

and our realizing how little basis there was for 

that equation from the American College of Sports 

Medicine was quite surprising and --

CHAIR MARKOWITZ: This is Steve 

Markowitz. This recommendation we're looking at, 

did I hear you say in the equation we should 

remove the word peak?

MEMBER FRIEDMAN-JIMENEZ: No, mean.

CHAIR MARKOWITZ: Mean, I'm sorry, 

mean.

MEMBER FRIEDMAN-JIMENEZ: Yes.

CHAIR MARKOWITZ: Yeah. Okay. So --

MEMBER FRIEDMAN-JIMENEZ: We removed 

the word mean from the right side of the 

equation, but it needs to be removed from the 
85

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

left side. I missed that.

CHAIR MARKOWITZ: Yeah. Okay. So I 

didn't know whether that's you, Ms. Rhoads or Mr. 

Bird, but if you could do that so we're actually 

looking at what we're going to vote on.

MR. BIRD: Yes, I will. I'm going to 

pull it up now.

MEMBER GOLDMAN: That mean, by the 

way, it's in the document that you sent to review 

the written paper, had the mean peak also in the 

equation in that paper. So if you're taking it 

out there, you may want to review that written 

document as well.

MEMBER FRIEDMAN-JIMENEZ: Okay. 

Thanks, Rose.

MS. POND: Dr. Markowitz, this is 

Rachel. I just want to say I appreciate the 

efforts put into this particular question. I 

know it's not exactly your mandate, so I'm going 

to try to avoid asking you impairment questions, 

but this particular one has caused some -- a 

little bit of controversy in the program. And so 
86

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

I wanted to make sure that we're clear on how 

it's used, when it's used, and how we can apply 

it to our impairment evaluations. So thank you 

for that.

CHAIR MARKOWITZ: Sure. So are there 

other comments or questions on this because we --

the recommendation and we need to take a vote. 

Okay. Is there a motion to accept this 

recommendation?

MEMBER MIKULSKI: I move to accept it.

CHAIR MARKOWITZ: And is there a 

second?

MEMBER WHITTEN: I second.

CHAIR MARKOWITZ: Okay. So any 

additional discussion, questions, comments? 

Okay. So then I think, Ms. Rhoads, you can do a 

roll call vote, please.

MS. RHOADS: Okay. This is on the 

six-minute walk test, the recommendation as 

amended that's on the screen right now. 

Dr. Bowman?

MEMBER BOWMAN: Yes.
87

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MS. RHOADS: Mr. Catlin?

MEMBER CATLIN: Yes.

MS. RHOADS: Dr. Friedman-Jimenez?

MEMBER FRIEDMAN-JIMENEZ: Yes.

MS. RHOADS: Dr. Goldman?

MEMBER GOLDMAN: Yes.

MS. RHOADS: Mr. Key?

MEMBER KEY: Yes.

MS. RHOADS: Dr. Markowitz?

CHAIR MARKOWITZ: Yes.

MS. RHOADS: Dr. Mikulski?

MEMBER MIKULSKI: Yes.

MS. RHOADS: Ms. Pope?

MEMBER POPE: Yes.

MS. RHOADS: Dr. Silver?

MEMBER SILVER: Yes.

MS. RHOADS: Okay. Mr. Tebay, if 

you're on, please let us know. Dr. Van Dyke?

MEMBER VAN DYKE: Yes.

MS. RHOADS: Ms. Whitten?

MEMBER WHITTEN: Yes.

MS. RHOADS: Okay. Again, 11 for.
88

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

CHAIR MARKOWITZ: Okay. Thank you for 

that excellent work, and it's 3:00 so we caught 

up a little bit. Next we want to go to, 

actually, Kevin, if you can go back to my slide, 

slide 43, yes, it's about impairment evaluations. 

You can go to the next one. So this is kind of a

free-ranging discussion. You know, it's unlikely 

we're going to come up with -- we may, but 

there's no pre-prepared recommendation on this 

topic. But we thought it was an opportune time 

to discuss various aspects of impairment 

questions that have come up. It does fall within 

the Board's chartered tasks of evaluating the 

quality, consistency, and objectivity of 

industrial hygiene and the medical consultants, 

or medical input, into the claims evaluation 

process.

And we've heard a little bit about 

impairment, well, the six-minute walk test is 

clearly an important scientific or technical 

aspect of impairment evaluation. But we also had 

heard from the public commenter back in November 
89

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

raising questions about how impairment, or 

aspects of impairment, are treated within the 

program.

So the group that discussed this was 

Catlin, Tebay, Duronda, Pope, and myself over the 

last few months. I'm showing here a slide that I 

presented previously. I think I presented this 

at our November meeting. Let me explain what

this is. So on a quarterly basis, the Medical 

Director of EEOICP conducts an audit of the 

contract medical consultants reviews that, you 

know, the claims examiner sends the claim to a 

contract medical consultant, a CMC, and asks 

certain questions and then uses the answers to 

judge the claim application. And so when the 

medical director does these audits, he, and it's 

been a he so far, reports out on them and uses 

the classification of some reports where, CMC 

reports, address the issue of causation. Did the 

exposure cause this person's illness?

Some of the CMC reports look at 

impairment. How much impairment exists for this 
90

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

particular person on their claimed illness. And 

then there's less frequently another category 

where the CMC -- or it's not just the CMC, I 

think, they have these second opinions, they have 

these referee medical evaluations maybe they're 

all called CMCs, I'm not sure, but it's outside 

Medical input.

And you can see that I took from the 

quarterly reports 2018-2019 and aggregated, 

really, just what the medical director said the 

number that need -- or number and percent that 

need improvement. Now so you can see in 2018, 

right, that's the third column of the impairment 

-- 67 impairment evaluations, 25 of them were 

judged by the medical director that need 

improvement. And in 2019 that was 27 percent, 

right.

By contrast with causation, of the 67 

causation CMC reports, only one percent, only 

one, was judged to need improvement, and none 

were judged to need improvement in 2019. So, 

previously, we have -- I know I've commented on 
91

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

the very low numbers of causation reports that 

the medical director found lacking in some 

respect and focused on that. But if you look at 

the impairment CMC reports, a pretty high 

percentage of them actually judge to be needing 

improvement.

Now, you ask what does needing 

improvement mean? Well, sometimes it's a major 

or significant issue and sometimes it's a 

relatively minor issue. So that 37 percent, 27 

percent, or overall both years it was, if you 

combine them, 32 percent, doesn't distinguish 

major versus minor. It does raise the question 

though of why are there so many CMC impairment 

evaluations that need improvement? And we have a 

-- the department has a contractor who deals with 

this issue, the CMCs.

And I know that what happens after the 

medical director does their audit that the policy 

branch actually looks it over and then makes the 

determination about asking the contractor to look 

into the issue of cases that need improvement. 
92

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

But there is -- the question is why there are so 

many of the impairment evaluations that need 

improvement.

Now I couldn't find any medical 

director quarterly reports for 2020 posted 

online. And it's possible that I wasn't looking 

in the right place, didn't use the right search 

terms. But I don't know, Ms. Pond, whether you 

know offhand whether there's been a delay, or 

whether those -- it's been done, those should be 

there, or whether that's more of a question for 

Mr. Vance.

MS. POND: So both John and I on -- I 

will say that our medical director has been 

pulled in a lot of directions due to the COVID 

issues, more with FECA, Federal Employees 

Compensation, that is part of the reason we're 

looking to reassess and reevaluate how we do 

these audits. Whether -- exactly who's going to 

be auditing them. 2020 has not been done, I 

believe it's not been done.

John, I don't think we did them in 
93

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

2020 because we were trying to re-evaluate this; 

is that correct?

MR. VANCE: Yes, I mean, we did stop 

the CMC reviews simply because these are issues 

regarding the six-minute walk test, and there 

were other questions about the application of the 

AMA guides in a manner in which we were trying to 

figure out, well, who is right and who's wrong? 

When there's differences of opinion like this, 

the question of six-minute walk, is, you know, 

we'll have different physicians taking different 

positions on what qualifies as a viable test for 

calculating the figure that, you know, goes into 

these pulmonary impairments.

So when you have a particular point of 

view that may not necessarily square with 

everyone else you've got to sort of figure out 

well, who's right and who's wrong. And so, you 

know, we've been looking at that trying to figure 

out how to make sure that our assessments of 

impairment are appropriate.

And so that's where the six-minute 
94

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

walk test came out where we were trying to figure 

out, is it a viable methodology for calculating 

the VO2? So that's part of what we're trying to 

rework into a new auditing methodology, you know, 

trying to get other physicians involved in some 

way so that there's a little bit more objectivity 

sort of.

MS. POND: Yeah, and a little bit more 

-- just more than one perspective is what we're 

looking for. And so we're trying to --

MR. VANCE: Right.

MS. POND: -- we're just trying to 

reevaluate the whole thing and that's why you're 

not seeing them, Dr. Markowitz.

CHAIR MARKOWITZ: No. Okay. Related 

to this table we're looking at here, this issue 

of impairment evaluations by the CMCs needing 

improvement, seems to date back at least a couple 

of years. And I realize 2020 is a difficult year 

in many respects, but any insight into why there 

seems to be such a high rate of questions on the 

impairment evaluations going back to 2018, 2019?
95

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: This is Dr. 

Friedman-Jimenez, I have a question. Is there 

any notation of which way the impairment 

evaluations were felt to be erroneous? Because, 

I mean, there's different levels of impairment. 

Were they generally setting the impairment level 

higher than it was believed it should've been 

set, or lower than it was believed that it should 

have been set? Was there any pattern there or 

was it just randomly wrong?

MS. POND: Dr. Jimenez, this is 

Rachel. This is a difficult question, only 

because, you know, there's $2,500 per percentage, 

okay. So ratings tend to go high and I'm not 

saying that there's any incentive at all for 

that. I'm just saying that we want to make 

absolutely sure that's they're accurate and 

appropriate. And -- but it's all based on the 

medical objectivity of the doctor and I know that 

these doctors are objective. We just want to 

have a backup from you guys on what you guys 

think is appropriate.
96

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: What I'm 

asking is, what is it that needed improvement 

about the impairment rating? Was is that it was 

felt to be over-classifying the impairment or 

under-classifying it, or just randomly being 

incorrect, or it was done poorly according to the 

methodology, things were left out? What did --

how did they characterize this need for 

improvement in the audit?

MR. VANCE: Yes, this is John, let me 

speak to that and, in fact, on our website if you 

go back and look at the ones that are publicly 

available, you'll see some of the post-audit 

analysis that's done in conjunction to the audit 

findings. And I would say it was really a 

variety of factors that was, you know, being 

identified as a potential problem, whether 

physicians were using proper application of the 

guidance in the AMA guides.

You know, the guides lay out some very 

specific criteria. In other areas, the guides 

are very, I guess the most pleasant way to say it 
97

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

is, very unclear as to what kind of methodology 

should be applied and combining different ratings 

and, you know, a variety of things. And it 

really does depend on the viewpoint of just who's 

looking at it. So, you know, it really did tend 

to go all over with regard to technical 

application of the guides and it became a 

challenge, I think.

When we looked at most of the postaudit results, Rachel's correct, we would look at 

these after the rating's already been done and so 

oftentimes what we would find was that the rating 

itself could've potentially had a technical error 

that could've resulted in a lower rating than 

what had been done before. But because we had 

paid that rating, we weren't going to go back to 

try to recollect or to call that an error.

That was just something that we wanted 

to work with the contractor that's doing the 

ratings with the CMCs to be aware of that there 

are these concerns to try to help doctors who 

were approaching particular things. It had to do 
98

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

with applications of defined value chart. It had 

to do with the application tables in the guides. 

I mean, it just -- there were lots of different 

things and it was, basically, mostly 

communicating back to our contractor, be aware of 

these things so we don't see these types of 

errors in the future.

CHAIR MARKOWITZ: If we could -- no, 

actually, I have a question, it's Steve 

Markowitz, that I've been meaning to ask. Is the 

CMC contract, is that under -- is that finished 

this calendar year and is it being re-set out for 

reconfiguring or new contractors?

MR. VANCE: No, that contract is it 

still with CMC and that -- I think it was renewed 

relatively recently, so I don't think that it's 

going to be completely re-bid. They'll exercise 

option years, which is basically extending the 

existing contract for a period of time until 

we're in a position where --

MS. POND: And this is Rachel, Dr. 

Markowitz. I, you know, I don't see a problem 
99

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

with the doctors, any of the doctors, the 

treating doctors, the CMCs. We just see 

conflicts in opinions and that's what we're 

trying to resolve. And so it becomes a little 

bit complicated, but the bottom line, we just 

want to make sure that we're being as fair as 

possible to everyone who's claiming these 

benefits.

CHAIR MARKOWITZ: Okay. Thank you. 

I'm sure it's not easy, actually. Can we have 

the next slide, actually. So some of the 

questions that were raised by our group about the 

-- to try to understand sort of what's going on. 

How many impairment ratings were performed the 

last two years? And we're not expecting answers 

to these questions right now, but these are 

things we were wondering about.

How many of those impairment ratings 

have been flagged for review by the medical

director? How many of the impairment ratings the 

medical director's flagged have been challenged 

in one way or the other? Are there specific 
100

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

impairment physicians with more challenged 

impairment ratings than others? And then what 

actions has the CMC taken to improve impairment 

ratings?

So I don't know whether, Ms. Pope, 

whether you want to chime in here. No, no 

pressure. And if, I don't know if Mr. Tebay got 

on the line or not, he was going to -- he told us 

he'd be in and out.

But let me, then, start off by asking 

you know, I looked over this morning at the 

procedure manual to understand the medical 

director's role. And I looked at it before. And 

what I was able to find in the 5.0 version was 

much of what I think, Mr. Vance, you summarized 

yesterday, which is that he weighs in on 

transplants, he weighs in on some important 

expensive medical items, experimental treatment, 

I think, on sort of advanced rehabilitation 

therapy, and a couple of other circumstances, 

transplants and the like.

I couldn't see any language which 
101

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

describes what we learned yesterday. I could 

have missed it, but that we learned yesterday 

where he's pulled into claims evaluation process 

and provides a written opinion on some aspect of 

that process. And this is, in part, described in 

the answers a couple of days ago that you gave us 

to questions from our November 2020 meeting.

I'm not raising this to dispute a 

proper role for him, I'm just trying to 

understand what that role is in the evaluation of 

specific claims. So I don't see that language in 

the procedure manual. So am I missing it or does 

it need to be re-examined or what?

MS. POND: So this is Rachel. The 

medical director has been a part of the audits, 

as you know. And so as part of that audit 

process of doing the CMC reports, he weighs in on 

the impairments because that's a large part of 

our CMC process. As John indicated yesterday, 

we're reevaluating how we're going to review the 

CMC reports and how we're going to do these 

audits.
102

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

And so while the procedure manual 

doesn't specifically say he's going to review 

impairment ratings, he is certified in reviewing 

them. He's an expert on impairment ratings and 

we are looking at the whole process at this 

point.

MR. VANCE: Yes, and let me add very 

quickly. So I'm very familiar with what's going 

on with these impairment ratings. You know, what 

I was communicating yesterday was, you know, he 

is a medical consultant. And claims examiners 

are tasked with evaluating evidence in the case 

file, but those claims examiners are not 

physicians, so they will ask questions about 

different things in a case file and sometimes 

that means that we will need to ask a medical 

expert their position on certain things.

So in other words, in an impairment 

rating situation, a claims examiner can be 

looking at evidence and evaluating a medical 

report from a physician and saying this seems 

suspect in some way, there's some issue the 
103

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

claims examiner isn't sure about, and so they 

will ask a question. They're going to say, is 

this something that I should be concerned about 

with regard to the way that this impairment 

rating is being done?

The medical director will answer that 

question and just say, here's my take on the 

issues that might be involved. It could be that 

there's no issue at all with the way that the 

doctor did the rating. It's valid and correct. 

Or it could be that the medical director says 

this is an issue. There is a calculation that 

might be mistaken. There might be an issue with 

regards to information that supports a different 

finding.

And so then when that information goes 

back to the claims examiner, they're going to go 

and take that information and go back to the 

treating physician and say, you need to consider 

this and respond to the issues that are being 

raised. And then once you get that response, you 

have to sort of decide, from a claims examiner's 
104

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

perspective, well, then, what's the next step. 

Did they get a rational response, or is it going 

be a need for, you know, a second opinion? So I 

always look at doctor -- any physician that we're 

going to as being a consultive source of 

information.

CHAIR MARKOWITZ: Steve Markowitz. So 

that -- that makes sense. I'm just trying to 

imagine myself as a claims examiner getting, 

perhaps, one opinion from the outside personal 

physician, impairment expert, maybe a second 

opinion from the CMC, maybe getting a variation 

of those opinions from the medical director and 

trying decide what's true or, you know, what 

should apply. And a claims examiner, obviously, 

as you say, is not a physician. So how does it 

actually work itself out? I can understand also 

why there would be delays in the process because 

the -- that's potentially awkward decisionmaking.

MR. VANCE: Yes. I can give you a 

very -- this is John. I can give you a very good 
105

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

example. So, you know, we have physicians that 

will submit impairment ratings and they will use 

the six-minute walk test. They will use other 

information because the six-minute walk test 

corresponds with the VO2 max. And according to 

one of the tables in the guides, it's going to 

classify into a particular range.

But a physician can then say, okay, 

this person with this six-minute walk test and 

this VO2 max result falls into a class for 

impairment which is a range of 51 to 100 percent 

impaired. And so a physician is then given some 

leeway as to how they assign that impairment 

within Class 4. And that is generally done on 

ADL interpretations. So how dysfunctional is 

this person due to this condition, or the 

breathing disorder, or what have you?

And so if a doctor is going to say, 

oh, this person is 95 percent impaired within 

Class 4 of the respiratory disorder, and I'm 

going to provide information that supports that 

rating, a claims examiner can look at the case 
106

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

file and, say, well, okay, a 95 percent 

impairment is severely impaired. And if I'm now 

looking at the case evidence and there's evidence 

that this person is able to perform many 

different activities of daily living based on 

factual information present throughout the case 

file contemporaneous to, you know, when the case 

file is being reviewed, the question is going to 

be this rating seems to be problematic.

And they're going to need to have a 

physician look at it and say, hey, is this, from 

a medical standpoint, problematic. And so you're 

going to ask our medical director, or you could 

ask a CMC, is this something that makes sense to 

you? And the response could come back and say, 

well, you know, that range for someone with had 

such a high impairment should suggest that that 

person is almost, you know, is severely disabled. 

They should not be able to, you know, really 

leave their bed. They should be bed-bound, homebound, and in need of significant medical help 

and I don't see that.
107

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

And so then the claims examiner, once 

they get that information, they will go back and 

ask the physician that provided the impairment, 

can you please look at this and explain it more 

fully to me so that I understand, as the 

adjudicator in this case, as to whether or not 

that impairment is sufficient. If the response 

is rationalized and the doctor provides some sort 

of compelling argument to support that 

impairment, it'll be accepted. If not, he'll 

likely have to seek out a second opinion. So I 

know that's a long-winded explanation, but that's 

a common occurrence that we would see.

CHAIR MARKOWITZ: Steve Markowitz. 

Does that mean that in some cases, the second 

opinion option, which is open to the claims 

examiner, that that function is being performed 

by the medical director?

MR. VANCE: No, that would be -- all 

the medical director would be doing is providing 

guidance as to what, you know, he or she thinks 

with regard to the sufficiency of the medical 
108

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

report that's being reviewed. So in other words, 

all that's doing is getting information to the 

claims examiner for the claims examiner to make a 

determination on what the person's development 

should indicate.

And it's actually up to the claims 

examiner to assess that information and make an 

independent judgment based on the weight of 

medical evidence. So in some cases, the medical 

director will come back and say, oh, that's a 

problem, but the claims examiner could be looking 

at other information and based on it say, oh, I 

see, there's something that I missed that 

compelled me to accept that opinion, or what-have 

you.

So all the medical director is, is a 

subject matter expert trying to provide 

information that allows the claims examiner to 

weigh the evidence to make a judgment as to 

whether to accept that impairment that's being 

presented or to seek out additional medical 

evidence.
109

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MS. POND: Right. Then, this is 

Rachel. So in some cases if there's a 

disagreement there then the second opinion might 

-- a CMC might be sought out.

CHAIR MARKOWITZ: Steve Markowitz. I 

mean, it seems to me if there were a core group 

of really good impairment CMCs, then that could, 

you know -- the claims examiner could send those, 

you know, questionable -- or impairment ratings 

in which they have a question to these CMCs, as 

they do for other issues, and the CMC could be 

very helpful in resolving that.

The record of the contractor with the 

needs improvements in impairment ratings being 

pretty high begs the question of whether they 

actually have, the CMC contractor actually has a 

core group of trustworthy impairment rating CMCs 

that the claims evaluators can rely upon more 

heavily as opposed to going to the medical 

director. I'm not suggesting there's anything 

wrong with going to the medical director, it's 

just that that doesn't seem to be the pathway 
110

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

that is used to address other medical issues.

MS. POND: This is Rachel. And I 

think that the fact that the medical director has 

been involved with our audits, and now we're 

reevaluating that, so we're going to look at all 

of those issues together.

CHAIR MARKOWITZ: Okay. Are there 

other -- other Board members have questions or 

comments?

MEMBER POPE: This is Duronda Pope. 

Dr. Markowitz, I think you captured a lot of my 

questions I was going to ask about the medical 

director. As if he was, I think it was seen just 

from looking from the outside in, used as a 

decision for opinions. And the CE was taking 

those opinions from the medical director and 

applying that to the claim opposed to, you know, 

seeking out telling the claimant that -- or 

seeking out a second opinion. But that was a 

confusing part for me, wondering if your 

attending physician's opinion, or the report, had 

any weight within the claim.
111

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MS. POND: This is Rachel. I'm not 

sure if that was a question directed at us. 

Again, we are looking at this issue in terms of, 

you know, we do go to second opinions. If 

there's no disagreement with the report that's 

written by the treating physician there's no 

reason to go to a second opinion. And so, 

therefore, in some instances when we go to the 

medical director and he agrees with it, we go 

ahead and accept it like John said.

In other instances, it might be a 

prompt to go to a second opinion. A claims 

examiner, not being a physician, doesn't want to 

just automatically go to a CMC if there's no 

reason to. So if we get an opinion from the 

medical director that says, I don't see this in 

the evidence, then that would be our prompt to go 

to a second opinion.

CHAIR MARKOWITZ: This is Steve 

Markowitz. So the impairment evaluations that 

have been problematic and have taken a long time 

to resolve, what's the universe of outside 
112

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

impairment physicians that have produced these 

evaluations, are we talking about one or two 

people out there? I know it's a -- I know from 

the side of the former worker program that this 

is a specialty niche in the DOE communities. I 

don't know how many are across the nation, how 

many impairment physicians are involved, but I 

don't think it's a large number. And so I'm 

wondering the ones that the evaluations have been 

proving problematic is this mostly limited to one 

or two physicians, or is this a broader concern?

MR. VANCE: Dr. Markowitz, this is 

John Vance. So I think also we just need to make 

a quick distinction here. You know, we're 

talking about two different buckets of impairment 

ratings. We're talking about the individual 

ratings that are done by CMCs at the request of 

the claimant versus impairment ratings that are 

being performed with physicians that the claimant 

has chosen.

If you're talking about the claimant 

chosen physicians, there is a very small pool of 
113

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

physicians that do them. There's not a -- I 

mean, there are many different physicians that 

are involved, but we do find that there are large 

groups of impairment ratings that are done by a 

very small proportion of physicians. That's not 

to say that they're aren't sporadic impairment 

ratings done by other physicians.

As far as the CMC review process, 

those are, you know, we have a contract with QTC, 

those physicians that are doing them have to be -

- you know, they had to be credentialed to do the 

impairment ratings. So our hope is that those 

ratings are being done well. But, you know, 

you're going to have differences of opinion 

because these impairment ratings, as I'm certain 

you know, can get very complicated as you have 

more conditions, more systems, more organ systems 

involved. So, you know, that's the part of this 

issue is how stringent, or technically compliant, 

are physicians with regard to the application of 

the AMA guidance. So there's a challenge with 

that and that's reflected in the (audio 
114

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

interference).

MEMBER GOLDMAN: This is Rose Goldman. 

I just have a question about these outside 

physicians, not the CMC. There are groups of 

physicians who sort of specialize in what's 

called independent medical exams or IMEs. And 

they're used to doing these kind of impairment 

ratings and they can be found as a specialty 

group or through the American College of 

Occupational Environmental Medicine.

So when claimants go and choose 

somebody to do those ratings, or to see, or to 

get that assessment, how do they know who to pick 

or is it that DOE is recommending somebody from 

some pool? Because I don't know that a patient 

would just know how to find these group of people 

who actually are out there who do this all the 

time.

MR. VANCE: This is John again. You 

would be surprised. What we generally see is 

that you have particular authorized 

representatives that have a relationship with 
115

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

particular impairment rating physicians. You 

know, these could be attorneys' offices, they're 

working with a particular group. You also have 

physicians just through word of mouth who are 

known in the claimant community as being capable 

of doing these impairment ratings.

The Department of Labor would not get 

involved with, you know, making any 

recommendations as far as presenting physicians 

to -- that claimants could choose to use. It's 

up to the claimant to find a physician that meets 

the criteria for a physician to present an 

impairment rating to the Department of Labor. 

And it's basically either the physician's 

credentialed in doing the impairment ratings or 

feels that they have the appropriate experience 

or capability to do it.

CHAIR MARKOWITZ: Other comments or 

questions? I don't know if there's -- Kevin 

could you just advance the slides? I don't know. 

I don't think there's any more -- no, there's 

nothing. You can go back to the previous slide, 
116

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

that's fine.

Well, let me just say that the Board 

is happy to assist in these issues, if you choose 

to ask us questions or otherwise involve us. It 

is part of our chartered task, which I've said at 

least twice in the last two days, about quality, 

evaluating quality, consistency and objectivity 

of the industrial hygiene and medical input into 

the claims evaluation process.

So we're probably going to have to 

stay on this issue with you. And I don't -- you 

know, the way the Board works where, you know, we 

have to, as a group with public access, develop 

recommendations and advice and then -- and vote 

on that. It's occurring usually every six 

months, occasionally more frequently, it is a 

kind of a slow process. I know it's governed by 

the Administrative Procedures Act, and there are 

limitations to how we can interact, I guess, with 

the Department. But if there are ways in which 

we can be helpful here, as you are making --

trying to figure things out, I would say on 
117

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

behalf of the Board that we're happy to do so.

MR. VANCE: And Dr. Markowitz, this is 

John. I just wanted to say thank you. You know, 

we've been struggling with that six-minute walk 

test. So I think that the analysis that has been 

done is going to be very helpful in helping 

alleviate some of the concerns that have been 

raised with regard to the testing that's being 

utilized to assign impairment ratings and any 

kind of assistance that you can help in those 

areas I feel like it will be very helpful. So I 

appreciate it.

CHAIR MARKOWITZ: Any other comments 

or questions on this topic, otherwise we'll move 

on. We don't have any new business that I'm 

aware of. Does anybody -- anything on Board 

members' mind that you want to raise?

MEMBER POPE: Dr. Markowitz, it's 

Duronda Pope. In terms of the questions on 

impairment ratings, is that just going to be 

tabled until our next meeting or --

CHAIR MARKOWITZ: Well, thank you for 
118

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

coming back to that, actually. We have, you 

know, two mechanisms that were set up by the 

previous Board term in terms of requesting things 

from the Department. One is the request of 

claims that we can review, and the other is the 

data request. And these questions we're looking 

at here would correspond to a data request. So 

we could formalize these questions. And I can't 

quite remember, Mr. Chance, does the Board have 

to vote on a data request? And he may have -- I 

think he may have stepped out.

MR. CHANCE: Can you hear me?

CHAIR MARKOWITZ: Yes, I can hear you 

now.

MR. CHANCE: Sorry about that. I was 

trying to unmute myself and was having all kinds 

of trouble. I don't believe you have to vote on 

a data request.

CHAIR MARKOWITZ: Okay.

MR. CHANCE: That's, you know, it's 

mostly the recommendations. Carrie, am I wrong 

about that?
119

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MS. RHOADS: No. I think you're 

right. Because they've done data requests before 

without voting.

MR.CHANCE: Yes, so I think you're 

good.

CHAIR MARKOWITZ: Okay. So then, I 

guess the question is whether we should just 

submit these questions to the Department or do we 

want to look at these questions, add, subtract, 

or amend them. Let's just take a look at them.

MS. POND: Dr. Markowitz, this is 

Rachel. You guys did vote on the six-minute walk 

test, I believe, right?

CHAIR MARKOWITZ: Yes.

MEMBER POPE: So, I mean, that was the 

question we asked. You know, you're welcome to -

- we can fulfill any data request that you have 

in addition to that, but that was a large 

majority of some of our concerns was that 

particular test.

CHAIR MARKOWITZ: Right. I hear you. 

What I think we should do is I think that we 
120

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

should not -- the phrasing of some of these 

questions, I think, probably needs some amendment 

given what we've learned. And so I think what we 

should do is bring this back to a smaller group 

to formulate. And we can do this relatively 

quickly. If we have questions we want to address 

then we can reformulate the questions. Because 

we have learned a lot at today's meeting.

For instance, question number two, it 

doesn't sound like medical director flags claims 

for review. So that might be an inappropriate 

question. So, Ms. Pope, if it's all right, what 

if we were to take these questions back to the 

group who's working on this and we reconsider 

them. And then if we want to -- since we don't 

need full Board to vote on it, then we submit 

them. How about that?

MEMBER POPE: Yes, that will work.

CHAIR MARKOWITZ: Yes.

MEMBER POPE: Thank you.

CHAIR MARKOWITZ: Okay. I would ask 

Mr. Tebay, but he's not here. Okay. So why 
121

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

don't we do that. And, again, I think we can do 

that pretty soon. We don't have -- there doesn't 

have to be much delay there.

Okay. So thinking in the future here, 

this is April, we normally meet as a Board at a 

minimum twice a year. Who knows whether we'll be 

able to meet in person come the fall. Hopefully 

we can. If not we'll continue to meet this way.

We may, if meeting in person is 

permitted, we may try a hybrid so that people who 

don't feel comfortable traveling wouldn't have to 

travel to participate in the Board. It's always 

nice to get together. We learn a lot and we love 

those tours that Mr. Lewis at the DOE arranges 

for us.

I meant to look up where we would be 

due to go next but we do this by the number of 

claims or claimants in the surrounding area, 

surrounding DOE communities or state. So we've 

been to Hanford and Oak Ridge and Savannah River, 

and Los Alamos, and Paducah. And I think I'm 

forgetting other places. So I'm not -- I can't 
122

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

remember what's next. But in any event, that's 

kind of the way we would decide where to go next.

MR. CHANCE: I think we were headed to 

the Test Site.

MR. BIRD: That's correct. We were 

scheduled to go to the Test Site in March of 

2020.

(Simultaneous speaking.)

MR. CHANCE: Yes, I even had, like, my 

bags packed and everything and then all of a 

sudden we couldn't go anywhere.

CHAIR MARKOWITZ: This was Nevada. 

The Nevada Test Site?

MR. CHANCE: Yes.

CHAIR MARKOWITZ: Yes, well, I guess 

bad luck. Bad luck to go to Las Vegas.

MR. CHANCE: Yes, maybe we shouldn't 

go there.

CHAIR MARKOWITZ: Yes. Yes, 

absolutely. So anyway, so okay. So we'll 

reconsider, think about that. Also we would 

expect that to be, you know, sometime in October, 
123

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

November. We try to schedule those -- that 

meeting, the fall meeting, a little bit earlier 

because -- for people who are involved with 

teaching classes or otherwise. They need a 

little advance notice about their schedules. So 

you can expect that we're going float dates 

sooner rather than later about that.

Now I do think there -- I mentioned at 

the beginning of today that there are two working 

groups that I can envision carrying on some of 

this work over the next several months. One was 

to deal with our assigned task around industrial 

hygienists and physicians and I, frankly, would 

include these impairment -- these questions about 

impairment rating in that group.

And the second group -- I think it 

would be useful, although this is just my own 

opinion, that we have a small group that looks at 

the public comments and sees if there are any 

issues that are within the Board's domain to 

address and then try to make some headway on some 

of those issues.
124

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

Was there any other issue, or set of 

issues, that have come up in the last couple of 

days or other -- or from the past that you think 

we should try to make some advance on in the next 

few months before the next Board meeting?

MEMBER SILVER: Where are we with the 

firefighters and other mobile job titles?

CHAIR MARKOWITZ: Well, yes, we made a 

recommendation. It was not accepted. If we can 

think of some other part of the argument that we 

should introduce then we can do that.

MEMBER SILVER: I think we got onto it 

through public comments. So perhaps it could get 

folded in with that working group.

CHAIR MARKOWITZ: It was a part of a 

public comment some time ago. So we could do 

that. I don't remember it coming up yesterday, 

but maybe it did. But you're right it has been 

part of the public comments. So, sure, that's a 

good idea.

MEMBER KEY: Dr. Markowitz. This is 

Jim Key. I would like to add that in that small 
125

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

working group we need clear delineation. I know 

the intent of Congress when this Act was passed, 

especially for those SEC classified groups, and 

we need clarification of why there's still, to 

date, 21 years later, the unnecessary delays in 

claimant -- claims being processed and 

compensation being awarded. Dealing specifically 

with those classified SEC groups.

MS. POND: This is Rachel. I just 

want to mention that the SEC classes and how 

they're classified and who classifies them are 

all in the purview of HHS/NIOSH. So the 

Department of Labor has no input into how those 

get classified and who is classified in those, 

other than just we implement what NIOSH 

determines.

MEMBER KEY: Yes, this is Jim Key 

again. I understand that, Rachel, but I'm 

focusing on those that have already received that 

classification.

MS. POND: So this is Rachel again. I 

just want to make sure I'm clear on what you're 
126

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

saying is that you feel like there are people 

that should have been in the class that we 

haven't put in the class for various reasons?

MEMBER KEY: No, ma'am. My concern is 

those individuals and classes of SEC that have 

already been awarded and least likely as not to 

have been used in evaluation of the claims and 

why the repeated delays within those claimants 

within those recognized SEC classes.

MS. POND: I would probably -- this is 

Rachel, I would probably need some examples of --

I'm not really clear on the issue. But if you 

want to provide examples then we're perfectly 

willing to look at them.

MEMBER KEY: Thank you.

CHAIR MARKOWITZ: Other comments, 

questions? So the -- thinking about these 

working groups, just to -- there are two kinds of 

units that we can use. One are committee --

subcommittees, and the other are working groups. 

And the subcommittees are open -- have open 

committee meetings, meaning that the public has 
127

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

access, the notification of that meeting has to 

be published in the Federal Register usually at 

least six weeks before the meeting occurs.

Whereas the working groups don't need 

that arrangement for public access, or there's no 

formal notification. The first term of the Board 

opted for subcommittees and since that time we've 

been moving towards working groups. There's some 

functional difference.

The working groups have tended to be 

more sort of technical, scientific, medical, 

answering specific questions. And so the working 

group work is sorting out those issues and then 

all recommendations, all decisions, or whatever 

the -- whether it's a committee or working group, 

are always brought to the full Board. That's a 

requirement.

Whereas the committees, I think, if I 

remember correctly, took on a broader set of 

tasks and were a little bit more exploratory in 

their discussions. For instance, we had 

subcommittees originally that corresponded to 
128

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

each of the four major tasks of the advisory 

board.

So the first term of the Board had 

stated their interest in making the process as 

open as possible and we pretty much followed that 

since that time. My guess is that would be the 

stance that the current Board would take as well. 

At the same time, the working group mechanism is 

extremely useful in getting work done because the 

time frames are different. It's much more 

flexible.

So my own preference, I think, and 

it's appropriate, is for us to continue the work 

through functions that I described, one for 

public comment, and secondly, weighing in on 

industrial hygiene medical input in the working 

group format. But we need to make sure, I guess, 

that that corresponds to the Department's 

conception of the Administrative Procedures Act 

because we obviously need to be in alignment with 

whatever the Act requires.

I know that we haven't had this 
129

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

discussion with the Department in a while about 

this distinction between working group and 

subcommittee. I just want to make sure we're 

following the rules. So, Mr. Chance, if you can 

weigh in now, otherwise if you could let us know 

soon whether we need to use one mechanism versus 

the other, or whether we can select which one we 

want to use, that would be helpful.

MR. CHANCE: Yes, Steve, this is Mike. 

Let me look at that distinction. I haven't 

looked at that in a while either. I think that 

you're basically right, but let me get back with 

you on that rather than commit to something.

CHAIR MARKOWITZ: Okay.

MR. CHANCE: Does that sound good? 

Yes, I'll get you an answer shortly.

CHAIR MARKOWITZ: Okay. Great.

MEMBER CATLIN: This is Mark Catlin, 

Dr. Markowitz. Is it a choice we have to decide 

one or the other or can we use both?

CHAIR MARKOWITZ: Well, interesting. 

Interesting. You mean, so we take on an area and 
130

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

when -- and we work on it as a working group and 

then we get to a certain point where we need to 

explore it according to a committee structure 

with a scheduled meeting, public access, et

cetera, and then maybe go back to the working 

group or vice versa. That's interesting. We 

never thought about that.

MEMBER CATLIN: It essentially would 

allow us to move ahead a little more quickly, it 

seems, in between our full Board meetings. So 

it's just a thought. 

CHAIR MARKOWITZ: Right. Right.

MR. CHANCE: Steve, this is Mike 

again. I do think that the working groups do give 

you greater flexibility, but let me make sure 

that -- I'm thinking there is some sort of a 

distinction between subcommittee, but I want to 

make sure before I say anything. But I'll get you 

something really quick on that. 

CHAIR MARKOWITZ: Okay. So --

MEMBER SILVER: This is Ken.

CHAIR MARKOWITZ: Go ahead.
131

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER SILVER: Yes, when it comes to 

a working group on public comments, I just wanted 

to make sure that there would be nothing 

constraining the members from picking up the 

phone and calling the people who gave public 

comments months or a year ago to clarify and 

welcome updated evidence. And then, by analogy, 

on the working groups, presumably, you've had the 

freedom to call up other former worker program 

directors or experts, you know, in the field. 

And the analogy is on public comments the experts 

are the people who commented. So I just wanted 

to make sure that the work group would be able to 

do that.

CHAIR MARKOWITZ: Steve Markowitz. 

Yes, that's a question for the Department. By 

the way, I forgot to mention, in the committee 

structure when we say the meetings are open to 

the public, I don't think there's a public 

comment period. It's more a question of them 

being able to listen in.

MR. CHANCE: Steven? Steve, it's Mike 
132

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

again. The contacting public commenters might be 

problematic. You know what, maybe you and I can 

a separate discussion on -- and hash some of that 

stuff out.

CHAIR MARKOWITZ: Sure.

MEMBER GOLDMAN: This is Rose Goldman. 

I just have one comment and just to follow up on 

something you said. I think there's a difference 

between some of these technical questions, like 

the walking test or Type 2A carcinogens, that 

having a more open, you know, process when you're 

in very early stage of hashing out ideas, some 

that you might keep, some that you might not. It 

seems that the working group format is a lot more 

efficient.

And then when you present it in the 

open forum and other people then have a chance to 

see the work and the final products and 

everything you have it, you know, put out there. 

And I think that's different than maybe some of 

these other questions where you're just -- where 

you're following up on comments that people made 
133

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

and maybe you need that ongoing input from a 

community who's raised these issues. So I just 

put that out there because the work, frankly, of 

this committee is already hard enough and it's 

sort of like writing a manuscript. You wouldn't 

want your first draft and everything out there 

necessarily until you got to the more final 

points.

MEMBER SILVER: Well put. Maybe, Mark 

Catlin's formulation would work for the public 

comments work group where we function as a work 

group and we think we've got it right then we 

hold an open meeting and there may not be a 

public comment period but, you know, the 

advocates know our e-mail addresses and they 

could set us straight after the meeting.

CHAIR MARKOWITZ: Yes. Steve 

Markowitz. So I think the way that Dr. Goldman 

characterized it makes a lot of sense. But I do 

think though if public commenters, or members of 

the public, want to make the Board aware of 

something that I would encourage them to submit 
134

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

public comments at any time, actually, to the 

Board. They needn't be restricted around the 

time of the meetings. And I think we have had 

some public comments that come in between 

meetings that have been sent to us.

So I'm looking now for volunteers for 

the working groups. And so one would take a look 

at the public comments and see what falls within 

the purview of the Board. It strikes me a lot of 

it is information -- is about getting additional 

information for clarification purposes. And the 

other one relates to the industrial hygiene and 

medicine evaluation. You know, the 

recommendation we made, the Department's 

obviously making some changes with respect to 

that, and then the impairment component of that 

to the extent that it's within our domain.

So who wants to volunteer for these? 

I must say it is nice to have people from the 

various so-called communities, scientific, 

medical and claimant community, on the Board. 

That's nice having a balance.
135

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER WHITTEN: Dr. Markowitz, this 

is Dianne Whitten. Can you hear me?

CHAIR MARKOWITZ: Yes.

MEMBER WHITTEN: I'll volunteer to be 

on both working groups.

CHAIR MARKOWITZ: Okay, great. Thank 

you.

MEMBER POPE: Duronda Pope, I'll 

volunteer to be both groups as well.

CHAIR MARKOWITZ: Okay. Thank you.

MEMBER KEY: Jim Key, I'll volunteer 

to be on the public comment group.

MEMBER VAN DYKE: Mike Van Dyke, I'll 

volunteer to be on the quality one.

CHAIR MARKOWITZ: Okay.

MEMBER CATLIN: And this is Mark 

Catlin, I volunteer for the industrial hygiene 

quality one.

CHAIR MARKOWITZ: Okay. Great.

MEMBER SILVER: Ken Silver, both with 

a tilt towards the public comment one.

CHAIR MARKOWITZ: Ken did you say both?
136

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER SILVER: Yes, but I think I'll 

only keep my nose in the quality one when 

industrial hygiene is discussed.

CHAIR MARKOWITZ: Okay. Okay. I'm 

going to participate -- I'll certainly 

participate in the IH and MD, and I'll see about 

the public comments.

MEMBER MIKULSKI: Steve, this is 

Marek, you can sign me up for public comments.

CHAIR MARKOWITZ: Okay. Okay, great. 

Well, you know, for other people you're welcome 

to weigh in here. I think what we'll do is 

circulate the membership of these working groups 

and then if people decide that they want to join 

in they'll be welcome. They'll be welcome to.

Finally, the Board process between 

meetings that we have in working groups, these 

semi-annual meetings, the communication flow, 

sending out draft reports, et cetera. I just 

want to -- if there's any -- people have any 

ideas on how to improve this, let's just discuss 

it briefly. I would say we have voted on four 
137

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

recommendations at this meeting. This meeting's 

a little shorter than our usual meetings, which 

have extended as long as two days and when we 

meet in person I think a day and a half has been 

our shortest. So we've done a lot.

We've done a lot at this meeting which 

means that we did a lot of work in the last few 

months to get things together for this meeting. 

So I think that's good work. But if there are 

ways in which we can improve this, do people have 

any ideas or comments about that?

MS. POND: Dr. Markowitz, this is 

Rachel. Before you end the meeting, I just 

wanted to say I think that the work that has been 

done behind the scenes, the recommendations that 

had been made in this meeting, have been great 

and I really do appreciate all the work that you 

guys have been doing. Especially given, you 

know, the fact that we were going through the 

pandemic and a lot of the physicians and the 

scientists and everybody involved in this have 

other things to do. So I just wanted to say 
138

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

thank you, again for your efforts and I think 

it's going to be really productive.

CHAIR MARKOWITZ: Good. You're 

welcome. You know, one thing I wondered on the 

IARC 2A group, maybe it's too early to mention 

this, but actually in the IOM report of 2013, 

there were some other sources of authoritative 

information that were recommended in Chapter 6, 

that might be integrated into the SEM. And I 

don't know whether you all want to take a look at 

that table and think about whether you have the 

resources and time to address some of the other 

sources, the California documents, the EPA 

documents. They're less targeted and there are 

fewer of them than NTP and IARC, but there are 

some other sources. So it's just a thought.

MS. POND: This is Rachel.

MEMBER GOLDMAN: Well -- yes, go 

ahead, Rachel.

MS. POND: So I was just going to say, 

we did look at the IARC -- that IOM report that 

came out. We did go through some of those. The 
139

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

reason we targeted the 2A is we thought it would 

be the easiest for you guys to tackle. Some of 

the other ones are a little bit -- I think that 

the IARC is really the most clear and specific. 

But, of course, we don't have a lot of resources 

for this particular task. We have a toxicologist 

who looks at these things, but we're willing to 

look at more. I mean, we do look at more, it's 

just time and resources.

CHAIR MARKOWITZ: Right, yes. So, 

actually, then my -- this is Steve Markowitz, the 

question I had was really addressed to the Board 

members.

MEMBER GOLDMAN: Well, I --

CHAIR MARKOWITZ: And we have the same 

time and resource limitations.

MEMBER GOLDMAN: Well, I would echo 

something that George Friedman-Jimenez educated 

me about, which is when you look at the depth of 

what it is that the IARC brings to it, it's 

really quite extensive and way beyond what we 

could do to start reading all the different 
140

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

articles and cataloging them. Now the only thing 

I could see is, you know, we just started with 

these that had been recently updated. I mean, 

one could consider, perhaps, looking again at the

NTP and just seeing which ones -- are there ones 

that might have been mentioned by them that are 

at, you know, these sites, that we didn't look 

at. You know, would there be other 2As.

I'm not so sure, and I'll defer to 

George on this, whether I would want to go to 

what California's listing, and this person's 

listing, but it just seems like that would be a 

bit of an overwhelming task. But we could stick 

to IARC and NTP and see if there are chemical 

substances that perhaps we didn't address because 

we just started out with these 22 that had been 

recently updated. So I don't know if George 

wants to weigh in on that. I don't know if 

George is on.

MEMBER FRIEDMAN-JIMENEZ: Yes, I'm 

here. I think, you know, we've made a 

substantial addition to what's in the SEM. I 
141

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

think the way that it gets integrated into the 

SEM and how well that works is something that we 

can follow up on. I think IARC and others have 

identified pretty well the occupational 

carcinogens that have been evaluated that are of 

concern.

My concern is to make the SEM a more 

user-friendly tool. And so to make sure that it 

gets integrated well and that it works and that 

it fills its purpose, which is to make the users 

of the SEM aware of the possible causal 

substances for a particular cancer that a patient 

has or to make people that are exposed to those 

substances aware of the possible cancer outcome 

from that.

And I think designing how the SEM is 

going to be updated is something that we can give 

some thought to also. You know, NTP puts out a 

report on carcinogens every few years. It used 

to be biennial, but now I think it's every three 

or four years. And IARC puts them out as they 

finish them.
142

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

So the mechanism by which they get 

reviewed and get onto the radar of the SEM and 

get incorporated in the SEM is something we could 

work with. And do we work at all with the people 

that do Haz-Map? Because this could be integrated 

into Haz-Map also. I don't know how well they've 

integrated the 2A carcinogens. I don't think 

they have.

MEMBER GOLDMAN: No, they haven't 

because we checked that, I think, in an earlier 

iteration of this. At least in the ones that we 

checked, the 18 that we looked at, none of them 

were mentioned in SEM and SEM is based on the 

Haz-Map.

And I guess, just to second something 

that George is also saying, you know, we put this 

work into these 11 and it would be nice to see 

what actually happened with those 11 now that 

we've put that out. What is going to be the 

response of DOL to this recommendation? Are they 

going to accept it, are they going to accept it 

for all of them? Are they going to come back and 
143

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

want more information about some other aspects?

So I think just waiting and see what 

happens because there may be a response from them 

that we need to then respond to. And I think 

George is also right that we need to build in how 

would the follow-up happen and who would be 

looking at the next thing, the next report to 

come out about the carcinogens.

CHAIR MARKOWITZ: This is Steve 

Markowitz. I don't think -- we'll see what the

Department, how it receives the recommendation on 

the 2As, but there's nothing, in any event, I 

think that would prohibit us from sending our 

recommendation and rationale to the Haz-Map 

people and just letting them know this Board 

exists and this is a recommendation. It's public, 

but what we came up with, you may want to think 

about it.

MEMBER FRIEDMAN-JIMENEZ: Yes, I think 

that would be good because the Haz-Map is more 

widely used. The SEM is really for only people 

in this program. The Haz-Map is used nationally 
144

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

and internationally. And I think that if they 

can incorporate this step forward as well I think 

that would have a beneficial impact.

MEMBER GOLDMAN: Well, that's a great 

idea, but who communicates with them? I mean, is 

there somebody from DOL who's in contact with 

them? Do we just reach out to whoever the head 

is? I mean, what's our standing to just do that?

MS. POND: So this is Rachel. You 

know, it's a good question. We'll have to look 

into it.

MEMBER FRIEDMAN-JIMENEZ: In theory, 

the SEM is really about identifying exposures and 

Haz-Map is about identifying the links and 

documenting the links between the toxic substance 

and the health outcome. So they have somewhat 

different roles. So I think if Haz-Map could be 

updated in a way that would incorporate these new 

carcinogens, or the 2A carcinogens, that would 

take a little bit of the causation weight off of 

the SEM. Because the doctors that use the SEM 

also use the Haz-Map, I think, to get more 
145

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

details because the SEM only gives minimal detail 

on the links.

CHAIR MARKOWITZ: This is Steve 

Markowitz. I think it's probably more accurate 

to say that the SEM incorporates Haz-Map, it uses 

Haz-Map to make the exposure disease links. I 

mean, correct me if I'm wrong, Mr. Vance or Ms. 

Pond, but I think that's the way the SEM was 

created and updated.

MS. POND: This is Rachel. That's 

correct.

MEMBER FRIEDMAN-JIMENEZ: So are you 

saying then that by updating Haz-Map, that the 

SEM will automatically incorporate those updates?

MS. POND: That's true, but we also, 

based on your opinions, we don't go through HazMap. Some of these causation links that we add 

to SEM are based on your -- so we're not solely 

reliant on Haz-Map. We can go ahead and add 

links into SEM without a Haz-Map verification, 

especially when it comes from the Board because 

you guys have expertise and we have documents 
146

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

that can back up what we add.

MEMBER GOLDMAN: So do you think that 

then DOL should be, I mean, you are using SEM. I 

mean, I don't know -- we've produced this 

document. One of the things that was said in the 

beginning is that some things we just can't 

share. So I'm not even sure what we can share 

and what we can't share. Of course, that's now 

public record since it's up on the website.

But is there a way we would --

somebody could reach out to them or from -- I 

mean, I don't have a connection with this 

organization, you know, and so who am I to just 

like write to them and say, hey, we put this 

together, maybe you're interested in it. But 

perhaps as an organization or somebody in DOL 

could say we use SEM but this is what our 

advisory board put together. I mean, who would -

- I think that's actually a great idea to share 

what we did and encourage them to make these 

linkages. But who would be the one to make that 

connection?
147

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: Well, HazMap is largely the work of Dr. Jay Brown in 

Washington State. I'm just looking at his 

website now. So maybe if we sent him our 

document, our review, we could start a dialogue 

with him and see if he'd be willing to consider 

adding the eleven 2A carcinogens to Haz-Map. I 

think it's just one guy, actually.

MEMBER GOLDMAN: Really?

MR. CHANCE: Hey, everybody. 

Everybody, this is Mike. Let me weigh in real 

quick on this about what I know about Jay Brown. 

That's true, it's the one guy. He did the whole 

thing when we started SEM way back many years 

ago. It was the only thing that was definitive 

enough that we felt like -- because it was also 

tied into other things like the NIOSH Pocket 

Guide and that sort of thing. It was something 

that was ready off-the-shelf that we could use.

I do believe that there is a way to 

communicate with him, but I think that Rachel 

should be able to look into that and find out. 
148

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

Because it's been a while since I've, you know, 

since I've looked at this issue, but you're 

right, it is Jay Brown and I think that Rachel 

can just, you know, do some investigating on how 

to get in touch with him. But she -- her point 

is still valid that the SEM can't expand beyond 

that database. Sorry to jump in, but I just know 

this so I thought I would add.

MEMBER GOLDMAN: Because, you know, 

just us reaching out like who are we? We don't 

even know him and I think that sounds like a 

better plan and, you know, if other people use it 

and he thinks what we've done is reasonable 

that's helpful to other people that are using 

that as a source.

MR. CHANCE: Yes, I would just leave 

it up to the Department to find out how that can 

be done.

MS. POND: Yes, this is Rachel. I 

agree with what Mike says. We, as I said, and 

the most important thing is we can still add 

those based on your research and what you provide 
149

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

to us because we will have the backup 

documentation. The bottom line and the most 

important thing for SEM is to make sure we have 

the scientific backup. And you guys, it looks 

like, have provided us with a lot of that and we 

don't have to go through Dr. Brown to do that.

That being said, yes, I will look into 

how we can -- he does what he wants on his 

database based on his set of criteria. So once 

we evaluate what you've given us, we could reach 

out to him and suggest it.

CHAIR MARKOWITZ: Okay. Well, this is 

Steve Markowitz. The first step is for us to 

finish the process of submitting a 

recommendation. We have four recommendations. 

They have to be submitted with rationales. The 

six-minute walk test rationale is already 

completed. The asbestos rationale is completed. 

I don't think any changes are required. And the 

IARC 2A rationale is completed. Although I don't 

know if you want to sign off on that and see if 

there are any changes you wanted to make or not.
150

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

I'm going to write up the COVID 

recommendation rationale. It's going to be 

brief. I can send it around to people for their 

input. But it's going to reflect pretty much 

what we said and it's going to be relatively 

brief. And I hope to do this within the next 

week or so, so we can get these things in.

Are there any other issues before we 

close the meeting? Any other comments or 

questions? Okay. Mr. Chance, I believe you're 

the one who adjourns these meetings.

MR. CHANCE: I think I am. I think I 

am. I hope -- we made a little change to the 

format this time and went 1:00 to 5:00. I 

personally think, just from observing a little 

bit, that the meetings were more focused. And 

the recommendations, you know, that are coming 

out of this are going to look good.

And Steve, I'm going to reach out to 

you to discuss the issues that were raised about 

working groups. I just want to make sure that 

we've got all that nailed down before we actually 
151

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1323 RHODE ISLAND AVE., N.W.

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com

talk about it. So I'll be reaching out to you in 

the next week and we can have a chat.

So that's all. I want to thank 

everybody for, I think, two really good days of 

discussion and digging into some weighty 

important issues for the program. And I guess we 

will be in discussion later about the next 

meeting and the location. So without anything 

else, I want to take everybody for their hard 

work and we adjourn the meeting.

(Whereupon, the above-entitled matter 

went off the record at 4:19 p.m.)