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UNITED STATES DEPARTMENT OF LABOR 

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ADVISORY BOARD ON TOXIC SUBSTANCES AND WORKER HEALTH

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SUMMARY MINUTES

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APRIL 24-25, 2019 

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The Advisory Board met in the Lamar Ballroom at the Augusta 

Marriott at the Convention Center located at 2 Tenth Street, Augusta, 

Georgia, Steven Markowitz, Chair, presiding. 

MEMBERS

SCIENTIFIC COMMUNITY

JOHN M. DEMENT 

GEORGE FRIEDMAN-JIMENEZ 

MAREK MIKULSKI 

KENNETH Z. SILVER 

MEDICAL COMMUNITY

MANIJEH BERENJI

STEVEN MARKOWITZ, Chair 

CARRIE A. REDLICH 

CLAIMANT COMMUNITY

KIRK D. DOMINA 

RON MAHS 

DURONDA M. POPE 

CALIN TEBAY 

DESIGNATED FEDERAL OFFICIAL

DOUGLAS C. FITZGERALD 
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WEDNESDAY, APRIL 24, 2019

Call to order and introductions:

Mr. Fitzgerald called the meeting to order at 8:42 a.m. The abovelisted board members were in attendance. Mr. Fitzgerald gave some 

brief housekeeping remarks and expressed his gratitude to the members 

and to the Department of Labor staff for their work in preparation 

for this meeting. He then gave a brief overview of his role in 

relation to the Department of Labor and to the Advisory Board. He 

also gave some guidelines around the purpose and structure of the 

public comment period and added that it is not meant for questions 

and answers but just listening to comments. He also requested that 

members refrain from discussing personally identifiable information 

that may have been contained in documents given to the Board by the 

Department of Labor.

Chair Markowitz thanked Members and DOL staff for their hard work and 

assistance in this process. The board members introduced themselves, 

as did staff from the Departments of Labor and Energy, various other 

stakeholders, and members of the public present at the meeting. 

Review of Agenda:

Chair Markowitz went over the agenda for the meeting, noting that 

times on the agenda are approximate.

Update and Remarks:

Chair Markowitz introduced Rachel Leiton, Director, Division of 

Energy Employees Occupational Illness Compensation (DEEOIC). Ms. 

Leiton began by reviewing the changes made to the Procedure Manual 

(PM), Version 3.0. EEOICPA Transmittal 19-01 details these changes, 

many of which relate to new terminology. DEEOIC has also changed its 

organizational structure. They consolidated divisions that handled 

medical bills and home healthcare pre-authorizations to create a new 

medical benefits office. She also informed members that Version 3.1 

of the PM will be released soon.

In particular, Ms. Leiton noted that Representative Conflict of 

Interest Guidance in Chapter 12 has been clarified. In Chapter 15.3, 

language has been added relating to evaluating an opinion of a 

treating physician. Treating physicians must provide epidemiological 

or health science data in support of their opinion that a toxic

substance is causally related to an illness before that opinion can 

be accepted in support of a Part E claim.

Chair Markowitz asked whether the requirement for the physician to 

submit data in support of their opinion was new. Ms. Leiton replied 
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that the language itself might be new but that requesting this data 

had been a longstanding component of the process in practice. She 

explained that this is a part of a greater effort to utilize the 

treating physician instead of going to a Contracted Medical 

Consultant (CMC). Chair Markowitz added that his concern is that the 

treating physician’s report might be regarded as insufficient due to 

his or her unfamiliarity with epidemiology. He suggested that the 

word “must” be changed accordingly. He also asked about the clause 

beginning, “Moreover, the CE must corroborate...” in Ch. 15.3c(1). He 

expressed his opinion that the sources of information listed in this 

sentence should be encouraged but not required additions. Ms. Leiton 

reiterated her earlier comment that the intention behind this 

language was to encourage examiners to return to the treating 

physician first for more information. With regards to Chair 

Markowitz’s point about additional information, Member Dement shared 

his view that it is important that cases not rely so heavily on site 

records, which can often be incomplete. 

Next, Ms. Leiton discussed changes in Ch. 15.13b that are also 

oriented towards encouraging claims examiners to return to the 

treating physician. The section discussing asbestos exposure between 

1986 and 1995 has been deleted in favor of a case-by-case assessment 

by an industrial hygienist. Criteria for a Part E claim related to 

hearing loss were also enumerated. She highlighted particular 

language about actions available to CEs when a worker claims that a 

job he or she retained is synonymous with one of the jobs listed. She 

also noted additional language instructing CEs on how to identify 

potential exposure to solvents related to hearing loss using the SEM. 

Chair Markowitz praised the DEEOIC’s efforts to expand the category 

of jobs potentially eligible for claims. He took issue with the 

continued presence of the language mandating a 10-year continuous 

solvent exposure prior to 1990, saying that it was unparalleled in 

other DEEOIC policies and too stringent. He proposed that 

“consecutive” be changed by “cumulative” to better reflect the 

current state of knowledge in occupational medicine knowledge. Ms. 

Leiton responded the industrial hygienists who devised this standard 

saw it as rather generous, based on the literature they reviewed. 

Ms. Leiton then went over changes to Ch. 18.5c, concerning beryllium 

sensitivity. Essentially, the section has been revised to read that 

DEEOIC will accept a doctor’s opinion that a result on a beryllium 

lymphocyte proliferation test is a false negative if there is 

evidence of steroid use. The criteria relating to biopsies have been 

moved to Ch. 18.6. Ms. Leiton explained that established chronic 

beryllium disorder (CBD) requires a stricter standard and that’s why 

biopsies were relocated to this section. Member Redlich recommended 

that a future revision read “steroids or other immunosuppressive 

medications,” as these other medications are common in treating 
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chronic fibrotic lung conditions. She also commented that peripheral 

blood tests may also result in false negatives.

Ms. Leiton then covered revisions to Exhibit 21-4. DEEOIC added more 

information as to what constitutes activities of daily living (ADLs) 

in order to provide more precise descriptors for the treating 

physician to include in his or her report to the CMC. Following that, 

Ms. Leiton went over formatting changes made to Ch. 24. There have 

been changes made to the cover letter requirements as well as 

allowances for a digital signature in some cases. Letter decisions 

will also be accepted for claims related to skin cancers. In Ch. 26, 

references to CE2s have been removed. Ch. 26.3a covers changes made 

to the cover letter in the “Notice of Final Decision.” A 

typographical error was corrected in Ch. 27. In Ch. 29, the language 

related to billing for hearing aids was clarified. For Ch. 30, the 

conflict of interest section was deleted because it was redundant 

with another section. 

Ms. Leiton opened the floor for questions. Chair Markowitz asked for 

clarification on what exactly was being deleted in Exhibit 15-4, 

Section 3b. He shared his opinion that it was important to retain 

from version 2.3 of the PM the reference to the fact that insulators, 

painters, pipefitters, among others from the designated list, were 

presumed to have had asbestos exposure from 1986 to 1995. He also 

expressed concern about deleting Part 1 so that painters, 

millwrights, and insulators will no longer be presumed to have had 

significant exposure to asbestos. Chair Markowitz asked DEEOIC to 

explain its thinking about this change as well as what the practical 

implication of deleting this section would be. Ms. Leiton replied 

that she will get back to the Board with that information.

Member Redlich commented that some tables in PM version 3.0 have not 

been changed to reflect the Board’s suggestions. She requested that a 

further revision look at making these changes, especially because 

they are largely factual corrections rather than recommendations.

Member Redlich also asked how the changes recommended by the Board 

are communicated to CEs and CMCs. Ms. Leiton responded that there has 

been some delay in that process as DEEOIC replaces its training lead, 

but that the training lead will be responsible for that task. Member 

Redlich replied that the Board would be happy to review the relevant 

training materials. 

Ms. Leiton mentioned the December 10, 2018 data and claims request, 

saying that it would be more appropriate to follow up after Mr. 

Fitzgerald’s remarks on the subject. She then went over the 

recommendation regarding asbestos-related disease, asthma, and 

occupational history questionnaires (OHQ). DEEOIC is still in the 

process of reviewing these and they hope to have a draft shortly. She 

also shared a follow-up related to the Board’s response to the 
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November 2018 request for information. DEEOIC has a report on the 

Board’s recommended changes to Bulletin 19-03.

Staff have found 170 cases that are eligible to be reopened out of 

1900 cases that have been reviewed so far. Lung cancer was the most 

common condition among these eligible claims. Ms. Leiton noted that 

the process going forward takes into account the new presumptions. 

Member Redlich asked about the process for proceeding with regards to 

instances where the board disagrees with final adjudication after 

reviewing cases. Ms. Leiton responded that DEEOIC will take the 

board’s input, through the Chair and the DFO, and reopen cases as 

necessary. Mr. Fitzgerald echoed this comment, saying that issues 

raised to the agency’s attention will be given due consideration. 

Given that the data Ms. Leiton presented were grouped into three 

segments, Chair Markowitz requested that the board be given 

individual data for the principal diagnosis in each case. Ms. Leiton 

replied that the groupings were an artifact of the process DEEOIC was 

using to review these cases.

Ms. Leiton has only recently received the report analyzing the cases. 

The report focused on three groups: 1) accepted cases, 2) denied 

cases, and 3) accepted then denied cases. Ms. Leiton informed the 

board that she would share the full report with members after she had 

had an opportunity to double-check it.

Ms. Leiton asked Chair Markowitz for clarification about the 

discussion item related to Dr. Jay Brown and Haz-Map. Chair Markowitz 

explained that the board learned that Dr. Brown does not have a 

contract to work on the SEM even though his services are utilized by 

DEEOIC. Ms. Leiton clarified that DEEOIC provides Dr. Brown with 

information that he can then use in the Haz-Map. DEEOIC can then use 

his Haz-Map updates to add to the SEM, even in the absence of a 

contract.

Ms. Leiton provided the Board with a report on the updates to all 

prior board recommendations from 2016 to present on which new actions 

have been taken. Given that the Board’s February 16, 2018 document 

reviewed the ’16 and the ’17 recommendations, Ms. Leiton reviewed 

DOL’s responses to it for the board. There were nine comments and 

nine responses in an August 2018 document. To the first comment, 

DEEOIC currently uses International Agency for Research on Cancer 

(IARC) Group 1 (carcinogenic to human) data. As for the inclusion of 

data from the Integrated Risk Information System (IRIS) and the 

National Toxicology Program (NTP), DEEOIC requested additional 

guidance from the board as to how to incorporate those sources into 

the SEM. She also informed the board that resources constrain 

DEEOIC’s ability to undertake a comprehensive review of the data 

sources used in the SEM. This is partly because DEEOIC and the Office 

of Workers’ Compensation Programs (OWCP) were not setup to support 
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research but to evaluate claims.

Member Friedman-Jimenez disputed Ms. Leiton’s characterization, 

saying that sometimes an extensive review of the data is a part of 

the clinical practice of occupational medicine. In response, Ms. 

Leiton stated that the program is not in the business of practicing 

occupational medicine and drew a distinction between the literature 

review that DEEOIC conducts for individual cases and a more general 

review of its methods. DEEOIC does not have a group of experts that 

it can turn to in order to conduct a more general literature review. 

Chair Markowitz commented that the intent of the recommendation was 

to identify that DEEOIC needs a deeper capacity for identifying 

existing knowledge to ensure that the program is up to date. In 

relation to this point, Ms. Leiton noted that DEEOIC will respond to 

the board’s most recent set of more detailed recommendations shortly.

Ms. Leiton went over the second response from the August 2018 

document, relating to the hiring of former Department of Energy (DOE) 

workers at its Resource Centers. DEEOIC is limited by the contract in 

what it can mandate in terms of hiring, though it does encourage 

hiring of former DOE workers, and cannot ensure that all hires 

administering the occupational health questionnaire (OHQ) are former 

DOE workers.

In response to the third comment related to claimant information, Ms. 

Leiton informed the board that there is no re-adjudication of 

segments. Differing conditions require different levels of evidence 

and DEEOIC supplies the appropriate amount of medical evidence 

whenever possible. Ms. Leiton stated that the information the CMCs 

receive depends on the type of referral and that she was unsure 

whether the OHQ was included in every instance. DEEOIC does convey

its assessment of exposure when it refers cases to CMCs.

Member Dement expressed concern that exposure information is not 

developed as fully as it could be when it’s conveyed to CMCs and IHs.

For this reason, the previous Boards have recommended that industrial 

hygienists be allowed to have access to claimants. Ms. Leiton 

responded that legal requirements dictate that CEs must be the ones 

making factual determinations and industrial hygienists should be 

returning to CEs for additional information if necessary. She 

clarified that the OHQ along with a report on how the results compare 

with others in the SEM are sent to industrial hygienists. Once 

certain exposure facts are confirmed, that information is then sent 

to the CMC instead of the OHQ, but the original OHQ is available upon 

request. 

Member Mahs asked whether the industrial hygienists in these referral 

cases are remote or onsite relative to the claimant’s DOE worksite. 

Ms. Leiton replied that they are not onsite at a DOE facility. Member 
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Redlich asked for more information about cases that include a hearing 

or contain a transcript. Ms. Leiton replied that claimants have an 

opportunity to request a hearing upon appealing their initial 

adjudication. The final adjudication board will then affirm the 

initial decision, reverse it, or remand it to the examiner, based on 

the information presented at the hearing. Claimants have the right to 

an authorized representative, who may or may not be an attorney. 

Member Mikulski noted that referrals to CMCs and industrial 

hygienists lack consistency. He asked at what level the decision is

made to refer cases. Ms. Leiton outlined the stages that lead to 

referral, including 1) the presence of a diagnosis, 2) determination 

whether the employment was covered, and 3) determination of exposure. 

Referral to a CMC is not a requirement and sometimes these 

determinations can be made in conjunction with the treating 

physician. Member Pope expressed confusion about some of the cases 

she reviewed where there seemed to be a discrepancy between the 

initial diagnosis and the ultimate determination. Ms. Leiton said 

that she would have to see the individual case to comment, given how 

much cases can vary. 

Member Tebay shared a concern arising from his experience with CMCs 

and IHs at the Hanford Workforce Engagement Center (HWEC). He has 

observed that CMCs and IHs were producing determinations based on 

assumptions that are not in the file. It appears at times that IHs 

are presuming certain degrees of exposure or non-exposure. Member 

Dement echoed Member Tebay’s sentiment, commenting that IHs should be 

required to state the source of their evidence when they make 

determinations against the claimant. Member Friedman-Jimenez pointed 

out that exposure sampling can be random or infrequent and is

therefore not always a reliable indication of actual exposure. He 

argued that use of the word “evidence” was inappropriate in this 

context and should rather be termed a “presumption.”

Chair Markowitz added that Circular 15-06, which stated that 

exposures after 1995 were generally within regulatory limits, was 

rescinded, but that the language used in some cases resembles the 

language from this rescinded Circular. Ms. Leiton responded that that 

Circular instructed CEs not to go to an industrial hygienist for 

cases after 1995, so now CEs will utilize IHs. Furthermore, she 

informed the board that IHs will make presumptions using the evidence 

available to them. The more information DEEOIC has, such as the HWEC 

information Member Tebay discussed, the better it can be in examining 

claims. IHs are meant to supplement the initial factual record where 

evidence is lacking. Ms. Leiton reported that DEEOIC addressed the 

Circular 15-06 issue in its response to the ombudsman’s report. She 

clarified that rescinding this Circular allowed CEs the flexibility 

to refer cases to an IH instead of making a presumption. Ms. Leiton 

said that she would have to verify what language is used by the IHs, 
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but that this is always open to modification.

Member Dement reiterated his objection to the portrayal by the 

industrial hygienist that there is evidence when there isn’t 

evidence. He would prefer that industrial hygienists state more 

clearly that, due to a lack of evidence, they are relying on their 

experience or other general guidelines to make their determination.

Ms. Leiton said that she would have to verify what language is used, 

but that this is always open to modification. Member Tebay emphasized 

the importance of precision in this language so that it doesn’t 

create additional burdens for claimants. Member Redlich added, from 

the physician’s perspective, that physicians rely on qualitative 

information from industrial hygienists familiar with the claimant’s 

line of work to determine whether or not the condition in question is 

work-related. In her experience with these cases, actual quantitative 

data on exposures are very rare. 

Member Silver asked whether exposure information in claims is made 

available for others and whether relevant claims that have been 

denied can be reopened. Ms. Leiton explained that the only way this 

information could benefit others is if a global presumption was

discovered and added to the SEM. Cases could be reopened if this 

occurred. New information is added to the SEM from case files as 

appropriate.

Ms. Leiton moved on to the response to recommendation four, related 

to presumptions for asbestos-related diseases. DEEOIC has made some 

of the changes and has been reopening cases. She noted that the 

board’s recent recommendations related to asbestos will be considered 

separately. DEEOIC adopted the board’s recommendation for asbestosis 

and it will add a presumption per the board’s recommendation for lung 

cancer. DEEOIC will reduce the latency period for the mesothelioma 

presumption and it will adopt the board’s recommendations for 

asbestos-related pleural disease, ovarian cancer, and laryngeal 

cancer. Ms. Leiton will postpone discussion of labor categories 

related to this recommendation until DEEOIC has evaluated the board’s 

latest recommendations.

In response to comment five, related to presumptions for work-related 

asthma, DEEOIC has adopted some of the board’s recommendations but it 

will be addressing this issue further in its responses to the board’s 

latest recommendations. Member Friedman-Jimenez asked what prevented 

DEEOIC from adopting NIH’s definition of toxic substance. Ms. Leiton 

answered that statutory phrasing limits DEEOIC’s ability to look to 

other agencies for guidance. In response to comment six, related to 

presumptions for chronic obstructive pulmonary disease (COPD), DEEOIC 

believes that the term “vapors, gases, dust and fumes” is overly 

broad and has caused disagreement within the department. Ms. Leiton 

skipped the response to comments seven and eight. In response to 
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comment nine, related to improving CMC auditing, Ms. Leiton noted 

that there are already mechanisms in place within DEEOIC which the 

department believes are sufficient. There were no further questions 

for Ms. Leiton from the board.

Board Operation Update:

Renewal of Charter

Mr. Fitzgerald gave the update. The board’s charter needs to be 

renewed every two years and July 2019 is when the current charter 

ends. The Federal Advisory Committee Act (FACA) process has begun 

within DOL and Mr. Fitzgerald doesn’t anticipate any changes or 

issues. He expects a new charter will be in place by July. 

Replacement of Dr. Cassano

Mr. Fitzgerald informed the board that likely next week (the week of 

April 28, 2019) a Federal Register notice will be issued for Dr. 

Victoria Cassano’s replacement. The new member will be either a 

scientific or a medical person. The nomination period will be open 

for 30 days, after which internal processes will review and vet 

nominees. Mr. Fitzgerald hopes a new member will be in place this 

summer. 

Review of Proposed DOL Data Request Form

There have been several iterations in the board’s process for 

requesting data from the program. The DOL believes that it would be 

helpful to establish a regular protocol for the board to request data 

in order to make the process more efficient but also to protect 

personally identifiable information (PII). A form has been developed 

that Chair Markowitz will submit to the program for data, 

particularly claims data.

Chair Markowitz asked Mr. Fitzgerald if the board should fill out the 

new form for the claims data request the board made in December 2018.

Mr. Fitzgerald said yes, that that would be helpful. Chair Markowitz 

asked for more specific feedback from the program regarding how the 

board’s communications could be improved. Though he voiced support 

for the data request form, he noted that sometimes an exchange 

between the department and the board is necessary and solicited 

guidance on the best way to facilitate such an exchange. Mr. 

Fitzgerald opined that the form will help clarify the issues and 

therefore will facilitate communication. Ms. Leiton contributed that 

knowing the purposes of the board’s data requests through the form 

will assist the department in fulfilling them. Chair Markowitz 

reiterated his frustration that the December 2018 data and claims 
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requests haven’t yet been fulfilled. He and Mr. Fitzgerald then gave 

an overview of the elements of the proposed form. 

Ombudsman Report:

Chair Markowitz introduced Malcolm Nelson, who gave the report, and 

informed members that they should have received DOL’s comments on the 

ombudsman report last night. Malcolm Nelson is the current ombudsman 

for the Energy Employees Occupational Illness Compensation Program 

(EEOICP). The Alliance of Nuclear Workers Advocacy Groups (ANWAG) 

asked Mr. Malcolm’s office to outline certain issues, including 1) 

examples surrounding use of the SEM, 2) issues involving use of 

language similar to language from Circular 15-06, and 3) issues 

surrounding claims for bilateral sensorineural hearing loss. 

Mr. Malcolm limited his comments to these three issues as well as two 

others. First, EEOICP is not sufficiently known among potential 

claimants. He commended the board for their efforts in disseminating 

information. Second, claimants struggle to understand the complexity 

of the EEOICP. Claimants often need extensive guidance to 

successfully navigate the elements of the program such as the SEM and 

the claims adjudication process. Claimants have particular trouble 

with the SEM. They do not understand how to refine the search, they 

question the accuracy of the data, and their actual jobs don’t 

conform to the labor categories listed. This dovetails with OHQ 

issues where claimants don’t discuss prior positions in sufficient 

detail. Claimants want to discuss their cases with every specialist 

involved in adjudicating their claim in order to maximize the 

information that’s provided. 

Unable to locate physical records, claimants often rely on selfreported evidence which they generally feel is not taken seriously by 

claims examiners. When CEs do not mention the claimant-reported 

evidence in their final recommendations, claimants are confused about 

what to do next and whether additional information is necessary. 

Claimants often feel that CEs and industrial hygienists don’t 

sufficiently understand how their jobs were done decades ago and the 

pressures they were under to get the day-to-day job done at any cost. 

Claimants also feel that there is a discrepancy between the 

Department’s stated position that smoking history is not taken into 

account and actual results where smoking history is cited as a reason 

for denying claims. 

Regarding the language from Circular 15-06, the claimants don’t 

understand how to square the fact that exposures were within 

regulatory limits with the program’s mandate that exposures that 

contributed to conditions are eligible for compensation. Mr. Nelson 

added a comment about presumptions, saying that presuming that 

someone was not exposed needs to be supported by evidence. 
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Sensorineural hearing loss continues to be an issue. Claimants desire 

a process for appealing denials when they feel that the listed toxins 

did indeed contribute to their hearing loss. This especially occurs 

in cases where the claim is denied solely on the basis of the job 

category. Mr. Nelson noted that the current version of the Procedure 

Manual outlines a process for CEs when claimants affirm that their 

job was synonymous with one of the qualifying labor categories. 

Claimants also question the medical necessity of the requirement for 

ten consecutive years. In general, claimants desire an ability to 

rebut the presumptions that are often used to deny their claims and 

feel that the current burdens placed on them are too burdensome. 

Member Silver asked Mr. Nelson whether he had seen any boilerplate 

language in claims’ decisions being used inappropriately. Mr. Nelson 

responded that his office often doesn’t see information from the case 

file but that he does hear from claimants regarding what they 

perceive as misinterpretations of their smoking history. 

Member Pope argued for the importance of having an advocate for the 

claimant who is familiar with the claimant’s working conditions 

present during the claims process. Mr. Nelson agreed, saying that 

claimants are often unsure about what aspects of their jobs they 

should prioritize. This is why claimants want to work directly with 

specialists so that they can provide information as necessary. 

Chair Markowitz asked whether one of the intended purposes of 

authorized representatives was to translate the complex adjudications 

for claimants. Mr. Nelson commented that the authorized 

representatives his office encounters often do not understand the 

adjudications and only assists the claimant with specific issues. 

Many claimants can’t afford an authorized representative in the first 

place. Many claimants also see a negative stigma around enlisting an 

authorized representative. 

Chair Markowitz also asked Ms. Leiton to explain whether DOL advises 

CMCs not to address smoking history, though he admitted that many 

doctors would likely ignore that advice. Member Friedman-Jimenez 

opined that it’s appropriate to mention smoking history when 

discussing contribution to a disease but that it’s also necessary to 

include other, relevant exposures as well. Member Silver added that 

it is necessary to distinguish between different levels of smoking. 

Review Board Nov. 2018 and Feb. 2019 Action Items and Responses:

Chair Markowitz stated that the board has covered these items already 

in the day’s meeting. 

Update, Presumption for COPD:
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The board does not have a revised recommendation for COPD. Chair 

Markowitz recommended looking at the COPD claims the board has on 

hand to examine how its work so far on this issue compares with 

what’s actually happening in claims’ decisions.

Claims Review, COPD Claims:

Chair Markowitz opened the floor for discussion on the best way to 

approach this discussion. Because this is an ongoing conversation, 

Chair Markowitz recommended that the board’s observations be 

considered provisional. Member Dement asked that members note major 

observations from this meeting to be shared at a later date with the 

rest of the board. Member Silver encouraged members to ask whether 

the final adjudication of the claims under review would be different 

if the board’s recommendation been accepted by DOL.

Chair Markowitz reminded the board of its tasks for claims review: 1) 

review use of site exposure matrices, 2) review medical guidance for 

claims examiners, especially what they provide CMCs and industrial 

hygienists, and 3) evaluate the work of staff physicians and 

industrial hygienists for quality, consistency, and objectivity. He 

also reminded the board not to mention personally identifiable 

information but noted that the site name was okay.

The board began with COPD denials. The first claim was from March 

2019. Chair Markowitz gave an overview of the relevant details, 

including the site name, employment history, and which 

chemicals/substances he or she was exposed to. The case was referred 

to an industrial hygienist who concluded that the person had 

significant exposure to endotoxin, asbestos, and silica but that 

those exposures after the 1990s would have been within regulatory 

limits. The industrial hygienist also stated that there is no 

evidence of exposures above the regulatory thresholds after the 

1990s. The case was then referred to a CMC, who determined that the 

long term exposure to tobacco smoke was responsible of COPD. The CMC 

noted that there were no indications of interstitial lung disease or 

pleural thickening, which was the final basis for ruling out 

occupation-related COPD. In summary, Chair Markowitz noted that even 

though the industrial hygienist determined that there was significant 

exposure, the CMC uses unorthodox methods to deny the claim. 

Member Domina noted that slide 19 needs to be redacted further. He 

also noted that the claimant was barred from the carbon graphite shop 

for respiratory irritation in 1987. Chair Markowitz remarked that the 

main error in decision-making in this claim resulted from the CMC’s 

judgment, but that it was difficult to understand what the IH and the 

CMC actually reviewed. In response to Member Redlich’s question about 

identifying the CMC, Mr. Fitzgerald asked that members raise issues 
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they identify with particular individuals to the program outside of 

the meeting.

Member Berenji noted that it is important to identify how CMCs are 

contacted, given the breadth of their experiences as physicians. She 

also remarked on the importance of consulting with the claimant in 

person to make these assessments. Ms. Leiton said that while there is 

a second review process where physicians meet claimants face-to-face, 

resources limit the possibility of this happening in every case. 

Member Domina asked about the process for vetting CMCs. Ms. Leiton 

said that there is a process in the contract for vetting and reverifying CMCs. Moreover, DEEOIC has quarterly conference calls to 

check in with CMCs and to advise them on issues, including the 

smoking history question.

Member Berenji asked if there had been any talk of convening an 

industrial hygienist panel within DOL to review the SEM and the OHQ. 

She suggested that convening industrial hygienists might provide a 

reference point against which the DOL’s industrial hygienists could 

be judged. Chair Markowitz noted that DOL quoted the CMC’s opinion 

regarding smoking. Ms. Leiton explained that DEEOIC cannot simply 

ignore the CMC’s conclusions. Member Silver commented on a prior 

meeting where he was told that CEs were instructed to limit the 

number of substances considered to seven, noting that that rule 

seemed to be applied in this case. Member Dement also took issue with 

the narrow focus on specific substances rather than to generalized 

exposure to vapors, gas, dust, and fumes. 

Member Friedman-Jimenez discussed a case where the CT scan was not in 

the record even though it had been conducted, and the CMC denied the 

case for lack of a CT. He asked if there was a process for ordering 

that these tests be performed or obtained as necessary. DEEOIC cannot 

order tests for cases it has not accepted because it cannot guarantee 

that it will pay for those tests. Mr. Fitzgerald said that that was 

standard practice generally in workers’ compensation. Member Redlich 

proposed allowing the CMC to insert relevant evidence for other workrelated conditions in addition to the primary condition. She also 

shared some of the research she had done on the plant where the woman 

worked, suggesting that the claimant likely experienced exposures 

beyond the asbestos that the SEM indicated. Member Redlich said that 

more information from the claimant was necessary. 

Member Tebay questioned why this claim was denied rather that 

postponed until the claimant could get a CT scan. He argued that 

postponement is necessary because appeals move faster than claimants 

can gather evidence.

Member Dement discussed another COPD claim that was denied where the 

SEM established diesel exposure but the industrial hygienist 
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determined it did not approach regulatory limits. Member Dement 

pointed out that the process did not allow the claimant to elaborate 

on other exposures that might have arisen through his work. He 

believed the case could have been developed better. Chair Markowitz

commented that it sounds like a case where the job title was 

relatively useless for determining exposure.

Member Mahs raised a case that was initially denied but then approved 

the case based on a finding of CMC error. Member Pope brought up a 

similar case of a security guard whose claim was denied and then 

reversed. Member Pope believes that the reversal came about because 

the authorized representative pointed out that the treating physician 

had not been consulted. Member Redlich added that this case did not 

need to be transferred to a CMC. Ms. Leiton reminded the board that 

DEEOIC has changed its guidance in a way that addresses the issues in 

this claim. Member Redlich added that the transcript gave a more 

accurate rendering of the claimant’s work than did the OHQ. 

Chair Markowitz asked Ms. Leiton to provide an update about the 

board’s recommendation that industrial hygienists have access to 

claimants. She also noted that industrial hygienists are able to 

contact claimants as long as the CE is involved. She added that the 

current definition of “toxic substance” used by DOL is meant to 

maintain parallelism with the definition used by DOE. Member 

Friedman-Jimenez asked that the program consider using the NIH 

definition of “toxic substance.” Member Dement said that the issue 

was linking the job to the toxic substances currently in the SEM.

Member Redlich asked if there was any way to ensure that claims are 

decided properly more efficiently. Ms. Leiton said that DEEOIC has an 

audit process as well as quality control checks. Member Berenji 

recommended that the program disseminate best practices for different 

conditions to CEs to ensure uniformity and efficiency. 

Chair Markowitz brought up another COPD denial claim of an instrument 

mechanic at building at X-10 in Oak Ridge. The SEM identified 

asbestos as the primary toxin but Chair Markowitz’s SEM research 

discovered cadmium as another potential exposure related to COPD. The 

claimant had 20 years of asbestos exposure prior to 1986. The 

industrial hygienist confirmed this exposure but the CMC opined 

otherwise, resulting in a denial. Chair Markowitz argued that the CE 

erred in sending the case to the CMC and also that the CMC erred, as 

the claim should have been approved under the Procedure Manual

guidelines. 

Member Friedman-Jimenez emphasized another case in which the 

industrial hygienist denied, citing the “there is no available 

evidence” language that members have taken strong issue with 

throughout the meeting and, explaining that this statement overstates 

the evidence available. Member Dement added that the industrial 
Page 15 of 30

hygienist is presuming what the measurements would have been, 

seemingly on the job title or category alone. Member Friedman-Jimenez 

made a second point that these industrial hygienists seem to be 

relying on a single agent causation theory, rather than a more modern 

multi-agent theory. He argued that the use of this language is 

pervasive and inappropriate. 

Chair Markowitz outlined the conflict industrial hygienists are 

facing with cases that span the time before and after DOE Order 

440.1. As a solution, he argued that industrial hygienists should 

simply acknowledge that they lack data for pre-1995 cases. Member 

Dement agreed, saying lack of data does not mean there’s no exposure. 

Member Pope pointed out that acknowledging no data will likely result 

in more denials because there’s no basis for approval. Chair 

Markowitz agreed, saying that CMCs were likely to deny based on a 

lack of evidence. Member Berenji proposed for a guidance document to 

ensure some uniformity of approach. 

Member Berenji discussed an approved COPD claim for an individual 

installing telephone lines. Praising the systematic collection of 

information, Member Berenji felt that the OHQ was detailed, the SEM 

adequately comprehensive, and that the CMC exercised good judgment 

regarding the individual’s smoking. She emphasized the telephone 

interview conducted with the claimant as being especially valuable. 

She confirmed for Member Dement that there was an X-ray. Member 

Dement brought up a similar approval for an individual from Fernald 

where the approval relied on chest X-rays demonstrating asbestos 

exposure. In response to his question about the NIOSH dose 

reconstruction in Member Berenji’s case, Ms. Leiton informed the 

board that NIOSH only does this for radiation/cancer cases. Chair 

Markowitz raised another COPD approval for consideration for a long 

term machinist at Rocky Flats. The CE appropriately relied on the 

personal physician’s opinion and a Former Worker Program letter 

instead of sending it to a CMC. 

Report from Parkinson’s Working Group:

Member Mikulski gave a summary of the working group’s activities 

looking at Parkinsonism and Parkinson’s disease. He began by 

clarifying terminology and defining terms. Parkinsonism is a general 

term referring to clinical slowness of movement, shaking in upper 

limbs, and stiffness. Parkinson’s disease is the most common variant 

of Parkinsonism. Many exposures, agents and disease can result in 

symptoms of Parkinsonism, including occupational exposure. 

Pathologically, Parkinsonism is a diverse set of disorders tied 

together by the loss of dopaminergic neurons in the substantia nigra. 

This is believed to be caused by an abnormal accumulation of certain 

proteins. 
Page 16 of 30

Parkinsonism and Parkinson’s disease receive the same medical 

diagnosis code under the most recent classifications. Any differences 

in classification are related to known secondary causes of 

Parkinsonism. The Parkinson’s Disease Society brain bank diagnosis 

criteria have been adopted by both the clinical and research 

communities, especially in epidemiological studies. The latest 

diagnostic system was introduced by the International Parkinson and 

Movement Disorder Society, which relies on the Unified Parkinson’s 

Disease Rating Scale. This new test introduces two levels of 

certainty which allows for a distinction between likely and confirmed 

cases of the disease.

The risk factors for Parkinson’s disease are poorly understood. Most 

research focuses on genetic factors and on exposures. PCB exposure 

has caused a decrease in dopamine levels in experiments. Furthermore, 

a population study showed a threefold increase in Parkinson’s in 

female workers exposed to PCBs at three electrical plants. This was 

confirmed in a pathology series that showed an increase of PCBs in 

brain tissue of female subjects. 

Solvents are widely used in the DOE complex, including carbon 

disulfide which has been identified as a potential risk factor for 

Parkinson’s disease in the Procedure Manual. There’s a lack of 

population-based studies looking at specific solvent exposures but 

there’s anecdotal evidence of small clusters of Parkinson’s following 

chronic trichloroethylene (TCE) exposure. TCE causes dopaminergic 

neuron loss in animals and a study showed that a consistent exposure 

of TCE lead to an increased risk of Parkinson’s. This latter study by 

the National Academy of Sciences adjusted for different genetic 

makeups.

Metal fumes and dust are another common exposure at DOE facilities.

Manganese in particular has been looked at as a risk factor for 

Parkinson’s disease. Additionally, iron and copper have been linked 

to a reduction in dopamine in animals and a two studies found an 

increased risk of Parkinson’s in workers with significant exposure to 

copper and iron-copper alloys.

Pesticides are another exposure that may increase the risk of 

Parkinson’s. DOE workers may be exposed to pesticides from nearby 

farms. Several different insecticides, herbicides, and fungicides 

have been linked to decreased dopamine levels. Furthermore, higher 

concentrations of a certain insecticide have been found in brain 

tissue of patients with Parkinson’s as compared to controls. 

Similarly, a pooled analysis found an increased risk in those exposed 

to insecticides and pesticides as compared to those who had never 

been exposed.
Page 17 of 30

Chair Markowitz highlighted the fact that, because Parkinson’s can 

only be diagnosed clinically, reasonable physicians can disagree 

about a diagnosis early in the course of the disease. He then asked 

if primary care physicians were able to accurately diagnose 

Parkinson’s. Member Mikulski replied that the accuracy of diagnosis 

is highest when made by specialists in movement disorders. Chair 

Markowitz then asked Ms. Leiton if one of the problems with these 

claims is that claims examiners are unsure about the diagnosis. Ms. 

Leiton confirmed that that was the case, explaining that Parkinsonian 

symptoms have been called different things historically. She then 

asked Member Mikulski to specify who qualifies as a movement 

specialist. Member Mikulski clarified that the specialist would be a 

neurologist with training in movement disorders.

Member Redlich offered her knowledge of Parkinson’s, saying that it’s 

a spectrum of diseases and therefore challenging to diagnose. Member 

Silver asked whether an individual who manifested symptoms but didn’t 

respond to drug therapy might be more likely to have another cause of 

his or her symptoms. Member Mikulski said possibly and that could be 

characterized as secondary Parkinsonism. Member Friedman-Jimenez 

asked how strong the evidence for PCB linkage is. Member Mikulski 

answered that they were very small studies. Member Berenji asked 

about the use of PET imaging to diagnose Parkinson’s. Member Mikulski 

said he hadn’t come across any such data. 

Member Friedman-Jimenez asked if he had more information about brain 

abnormalities revealed in MRIs of individuals with manganism. Member 

Mikulski said that he has not looked at the effects of manganese 

specifically. Chair Markowitz added that the DOL approach is to treat 

all variants of Parkinsonism as equivalent, including manganism. He 

then shared his opinion that a CMC would likely defer to a personal

physician in these cases because seeing the patient is essential for 

a diagnosis. Member Mikulski said that it depends on the level of 

expertise of the CMC and that he would caution against using a CMC’s 

opinion as a final diagnosis. Both agreed that Parkinson’s diagnosis 

was sometimes complicated, and Member Mikulski expressed some 

potential criticism of the Unified Parkinson’s Disease Rating Scale.

Claims Review, Parkinson’s:

Chair Markowitz opened the floor for claims review. Member Mahs 

brought up a denied claim from a laborer at the Savannah River Site. 

He noted that the final decision does not reference the claimant’s 

testimony and that the claimant was exposed to substances linked to 

Parkinson’s. The industrial hygienist opined that it was highly 

unlikely that the claimant was exposed to carbon monoxide or metal

fumes to a significant extent. Chair Markowitz asked whether the 

exposure or the diagnosis was the sticking point for the examiners.

Member Mahs clarified that it was exposure.
Page 18 of 30

Chair Markowitz raised an accepted claim of a chemist who was exposed 

to manganese and potassium permanganate. The industrial hygienist 

concluded it was more likely than not that exposure caused the 

disorder and the CMC concurred. The diagnosis was not questioned and 

the exposures were recognized by both the industrial hygienist and 

the CMC. Member Domina noted that he had claimed that he had lost his 

sense of smell since 1995. Ms. Leiton commented that and similar 

aspects of diagnosing Parkinson’s are very helpful to DEEOIC. Member 

Domina also expressed concern around the claimant’s denials for 

neuropathy and kidney disease because his file was missing records 

from 1955 to 1965. 

Member Mikulski flagged a case of a workerwho worked for 20 nonconsecutive years at the Portsmouth GDP. His initial claim was denied 

based on lack of medical evidence and then ultimately denied for lack 

of causation. Member Mikulski noted that the CE did not take into 

account the OHQ, which listed exposures. Ms. Leiton suggested that 

the claimant could have been denied for missing exposures to the 

specific substances flagged in the Procedure Manual for linkages to 

Parkinson’s. Chair Markowitz then noted that a lack of evidence of 

exposure to carbon monoxide, manganese, certain alloys, welding 

fumes, and steel materials means that a claim doesn’t meet the 

standards set forth in the Procedure Manual. Member Redlich suggested 

that this case raises the question of whether additional categories 

of exposure need to be added for Parkinson’s. Chair Markowitz 

remarked that it’s not clear yet, but that the conversation is 

helping refine the issues. 

Member Dement brought up a denial of a pipe-fitter/welder at Oak 

Ridge. The diagnosis was accepted. The industrial hygienist concurred 

that there had been exposure to substances linked to Parkinson’s but 

repeated the same phrase about evidence and regulatory limits that 

members have noted previously. The case was denied on the CMC’s 

opinion that Parkinson’s is only linked to high, sustained exposures 

to manganese, in particular. Member Dement opined that, even though 

the claimant only spent seven years at a DOE site, it’s likely that 

his time there contributed to his Parkinson’s. Member Berenji shared 

that it’s a common occurrence in her practice to see individuals who 

only reveal their work history in person. Both members agreed that 

the claimant would have likely benefited from more details about his 

day-to-day jobs. Member Pope questioned why the chemist’s case was 

accepted but the welder’s was not, noting that several other welders 

in her cases were also denied. Member Dement suggested that it had to 

do with the number of years the workers spent at the job sites. 

Chair Markowitz raised another accepted claim for a janitor and 

machinist. The industrial hygienist identified several metals, 

including manganese and copper exposures and the CMC agreed that 
Page 19 of 30

those exposures were enough to justify the claim. Member Pope asked 

if there were differences among individuals in the length of time it 

takes Parkinson’s to develop. Chair Markowitz said that the board 

needs to take a further look at the literature on welders and 

Parkinson’s.

Member Mahs brought up a denied claim of a project engineer at 

Portsmouth GDP. The claimant did not provide sufficient evidence of 

exposure while at a DOE facility and Member Mahs agreed with the 

determination in the case. Member Berenji discussed a case of a 

cafeteria worker and maintenance mechanic at Oak Ridge. Member 

Berenji felt that there was a discrepancy between the OHQ and the SEM 

for this case. From a clinical perspective, she also felt that the 

two neurologists and the authorized representative ensured that the 

case was well documented. She highlighted the work of the second 

neurologist in terms of clinical documentation. She noted that the 

claimant is filing for ALS now and discussed some of her own research 

into linkages between Parkinson’s and ALS.

Public Comments:

Terrie Barrie, Alliance of Nuclear Workers Advocacy Groups (ANWAG)

Ms. Barrie opened her comments with a criticism of DOL’s support for 

the board, saying that the Department hasn’t responded to requests in 

a timely fashion. She pointed out that DOL has not provided the 

requested contractors to assist the board in reviewing the SEM. She 

also criticized DOL for not providing adequate evidence in its 

refutation of the board’s recommendations, unlike the NIOSH Advisory 

Board on Radiation and Worker Health. She expressed disappointment 

that the DOL had not attended a recent teleconference. She called on 

DOL to justify not reappointing the board’s members every two years.

ANWAG will file a Freedom of Information Act request for the 

citations and evidence the DOL used to rebut the board’s 

recommendations. She also offered correspondence between ANWAG and 

Secretary of Labor Alexander Acosta for the record.

Faye Vlieger, Worker Advocate under EEOICPA and former Advisory Board 

Member

Ms. Vlieger expressed consternation about the lack of consideration 

given to the prior board’s recommendations. She requested that the 

board vote to re-submit the recommendations at tomorrow’s meeting.

She also discussed what she characterized as the DOL’s non-adherence 

to the rescission of Circular 15-06. She commented that, while she 

was a board member, evidence was presented demonstrating that the 

Circular was not based in scientific fact. Claims examiners continue 

to use the Circular 15-06 language in denials of claims. She asked 

that the board put an active question to the DOL requesting evidence 
Page 20 of 30

used to deny claims using the language from Circular 15-06. She 

expressed particular concern about a specific contractor, Paragon, 

and its perceived conflict of interest.

Vina Colley, National Nuclear Workers for Justice and

Portsmouth/Piketon Residents for Environmental Safety and Security

Ms. Colley requested that the board hold a meeting in Portsmouth, 

Ohio, to learn more about the site and facilities there. Information 

on plutonium and transuranics on site was just recently released at a 

public forum there and the Health Department is holding a meeting 

about neptunium in local schools. She requested records about what 

workers at Piketon were exposed to. She read a worker’s statement who 

believed that CMCs had deliberately been given incorrect or false 

information with the intention of denying claims. She said that there 

had been a fire in one of the buildings on the DOE site that wasn’t 

reported to the public for a week and a half. Workers on site claimed 

that they were exposed to significant amounts of PCBs, radiation, and 

TCE because they worked for long times without adequate protection. 

Ms. Colley argued that the records for the Portsmouth/Piketon 

facilities must be released to facilitate adequate processing of the 

claims. She discussed in greater detail the information on plutonium 

and transuranics that was released. She closed with a reiteration of 

her invitation to come to Portsmouth to investigate in person.

D’Lanie Blaze, Worker Advocate for Santa Susana Field Laboratory and 

the Canoga and DeSoto Facilities

Ms. Blaze expressed concern that CMCs are neglecting a proper 

accounting of industrial hygienists’ reports, substituting their own 

evidence or experience. She referenced a claim from a worker at Santa 

Susana where the industrial hygienist concluded that exposure was 

highly unlikely even though he or she had spent the body of the 

report discussing the claimant’s significant exposure to agents that 

caused kidney disease. The CMC’s report then identifies only limited 

exposure, again despite the numerous accounts of exposure in the 

record. When Ms. Blaze contacted the IH in question, the IH responded 

that she was instructed to use that language in the conclusion. Ms. 

Blaze argued that the CMC’s failure to adequately read the report 

resulted in unnecessary costs for DOL and delays for the claimant.

She recommended removing summaries and tables from IH reports, to 

force CMCs to do a more thorough job of reading the report.

Angel Little

Ms. Little shared the story of her father, Earl A. Brown, Jr., who 

worked at Oak Ridge National Laboratory and now suffers from 

berylliosis. His claim for berylliosis was approved, but his claim 

for kidney failure, which was likely caused by his berylliosis, was 
Page 21 of 30

denied. She criticized his case manager for not providing adequate 

care for her father. She then continued to share the story of her 

father and what Ms. Little perceives as his inadequate care. She gave 

her contact information and encouraged board members to contact her 

to get her father’s full story. 

Stephanie Carroll

Ms. Carroll, as an authorized representative who specializes in 

beryllium-related conditions, discussed extensive beryllium exposure 

at the Portsmouth site. She commented that there was a stark 

discrepancy between what the SEM reported for that site and the 

documentation that should be included in the SEM. 

Rick Reavis

Mr. Reavis echoed Ms. Barrie’s comments that Congress needs to 

investigate and correct issues with this program. He cited a history 

of corruption and issues with the program. He discussed the history 

of Texas City Chemical (TCC), which he argued was given privileges 

that other facilities were denied. He also expressed criticisms of 

DOL for not being transparent with information about TCC. He also 

gave his cell phone number and asked to be contacted by board 

members. 

Donna Hand

Ms. Hand discussed DOL’s rebuttal of the phrase “vapors, gases, dust 

and fumes” as being overly broad, saying that the intention of Part E 

claims was to be broad. She said that this definition of toxic 

substances dovetails with the definition used by the Occupational 

Safety and Health Administration (OSHA). She argued that the DEEOIC’s 

own standard that medical knowledge be as current as possible 

conflicts with their refusal to accept this phrase. She cited from 

other internal DOL standards that supported her argument that the 

aforementioned phrase should be adopted. She discussed standards for 

approving and denying claims, pointing out that contribution and 

aggravation are not being used in CMC decisions as legitimate 

standards for approving claims. She argued that the level of exposure 

was a subjective statement and should not be a consideration if 

exposure had been confirmed. She stated that the biokinetics of 

chronic beryllium disease was linked to issues beyond kidney disease, 

including liver and skeletal issues. She closed with a discussion of 

a case where a claimant asked for an IH review and was denied. 

Adjournment:

Chair Markowitz adjourned the meeting for the day at 5:41 p.m. 
Page 22 of 30

THURSDAY, APRIL 25, 2019

Call to order:

Mr. Fitzgerald called the meeting to order at 8:43 a.m.

Parkinson’s and COPD Claims Review, continued:

Member Silver discussed a claim for a machinist in building Y-12 who 

was diagnosed with Parkinson’s by his primary care physician. The 

physician said that he or she feels that the condition is workrelated and also noted that the claimant’s wife needs help providing 

assistance. Two industrial hygiene reviews were completed, only one 

of which correctly identified exposure to stainless steel and carbon 

steel. Both ignored the manganese that the claimant might have been 

exposed to. Irrelevancies in the CMC’s report suggested that portions 

were copied and pasted blindly. As an aside, Member Silver shared 

that Dr. Robert Feldman from Boston University argued that positron 

emission topography was useful in distinguishing idiopathic 

Parkinson’s disease. The physician acknowledged that L-DOPA was 

working for the claimant, suggesting that a toxic agent might not be 

the source of the condition. Though he disagreed with the IHs and the 

CMC, he ultimately agreed with the denial for that reason. 

Member Friedman-Jimenez asked whether information about the percent 

of manganese in the steels used in DOE sites was available. Member 

Silver commented that he would have checked reference sources, some 

of which were written by DOE engineers. Member Friedman-Jimenez also 

commented that he wasn’t sure that probing the globus pallidus was a 

viable way of determining whether Parkinson’s was idiopathic as 

opposed to manganism. Member Mikulski agreed that manganism is not 

clinically distinguishable with confidence from Parkinson’s. Mr. 

Malcolm Nelson commented that the Procedure Manual treats 

Parkinsonism and its aliases as effectively similar. Member Redlich 

commented on Member Silver’s case, supporting his argument by saying 

that Parkinson’s incidence increases with age. Members Silver and 

Friedman-Jimenez wondered about the latency period for manganeseinduced Parkinsonian symptoms. 

Member Dement raised a claim from a metallurgist from Sandia who 

developed Parkinsonian symptoms. On appeal, the claimant submitted 

his publications proving that he worked with manganese and the claims 

examiner accepted the claim. 

Member Silver brought up a COPD denial claim for a worker at the 

Nevada Test Site where the main exposures were silica, asbestos, 

lead, and diesel exhaust and other fumes. Her primary care physician 

diagnosed her with COPD and cited her six years of heavy asbestos 
Page 23 of 30

exposure. Member Silver noted that the CMC seemed to include smoking 

history boilerplate, without referencing her history. Member Silver 

shared that, along the board’s recommendation, he disagreed with the 

decision because the claimant had at least five years of exposure to 

vapors, gas, dust and fumes. Chair Markowitz said that, from his 

perspective, the overlap of the laborer category at the Nevada Test 

Site and exposures linked to COPD was sufficient. He also noted that 

there are contradictory statements in the IH’s report. Member Pope 

concurred, saying she’s noticed a trend of similar statements in IH 

reports. 

Member Domina pointed out that the “below regulatory limits” language 

that keeps reappearing fails to specify which regulations the writer 

is referring to. He also advocated for DOL to consider cases 

differently where a special exposure cohort (SEC) has been 

implemented instead of putting the onus on the worker. Member Mahs 

commented that four out of six cases he reviewed had that same 

contradictory statement that Member Pope and Chair Markowitz 

identified. John Vance, Chief of the Branch of Policy, Regulations & 

Procedures (BPRP) clarified for the board that some of these cases 

may still be open. 

Member Silver concurred with Member Domina’s proposal to apply 

different standards to sites with an SEC. Chair Markowitz asked if 

there was any evidence for pre-1995 claims that the industrial 

hygienist used monitoring data in his or her report. In response, 

Member Berenji discussed an approved claim from Rocky Flats. The 

claimant had a fragmented work history, so it’s hard to determine 

whether other positions may have impacted his health. She commented 

that there were sampling reports from the industrial hygienist at the 

plant, in addition to the SEM. She noted, however, a discrepancy 

between the SEM exposures and the industrial hygiene report and 

expressed a belief that industrial hygienists overly rely on the SEM. 

Member Tebay commented that, at the HWEC, the IH data in the file is 

often only what the claimant submits. He also shared that this point 

of contention – that IHs do not have evidence for their presumption 

that exposures did not broach regulatory limits – has been an ongoing 

conflict between HWEC and the DOL. Chair Markowitz said that, if CMCs 

weren’t relying on boiler plate language, then he would expect to see 

more variation of responses to exposures characterized as both low 

and frequent. 

He then asked Mr. Vance how the board should make comments to the 

program that might be beneficial in the review of claims. Mr. Vance 

said that that would have to be a conversation between the board, the 

DFO, and the program. Mr. Fitzgerald cautioned against making a 

decision on the fly about this topic and also suggested that the 

board focus on more general, programmatic issues. Member Friedman-
Page 24 of 30

Jimenez proposed that the board aggregate its findings and then 

transmit that to the DOL. Seguing into how the board should move 

forward with claims review, he reminded the program that the board 

has an outstanding request for 80 claims. Member Dement said that the 

board should make synopses for each category of claims that then 

might be distilled into comments on the broader program. 

Member Silver asked about the status of the board’s request for an 

outside contractor to assist with review. Chair Markowitz said that 

this board would have to re-submit that request for it to be active. 

Member Friedman-Jimenez concurred with the proposals of both Member 

Dement and Member Silver. He also said that the board should look at 

cancers. Member Redlich said that it would be helpful to know what 

the most common types of claims are. Chair Markowitz said that that 

information was a part of the board’s December 10, 2018 request. 

Member Berenji concurred and advocated for a systematic approach to 

claims review. Chair Markowitz agreed that there needs to be a 

systematic approach. 

Member Friedman-Jimenez asked about injuries, such as chemicalinduced injuries, as well as impairment. Chair Markowitz asked if it 

was in the board’s charter to look at those issues, but that it seems 

to fall under the board’s purview, per task number four. Member 

Dement said that the board needs assistance in conducting in-depth 

review of claims if it’s going to serve its function to the program. 

Member Redlich said that the general workers’ compensation program 

should handle acute or traumatic events. 

Mr. Fitzgerald informed the board that it’s currently unclear whether 

resources for contractors will be available. He encouraged the board 

to look at an approach that accounts for limited programmatic 

resources as well as the limited personal time of the members. In 

response, Chair Markowitz summarized the board’s general position on 

what’s needed to accomplish its task. Mr. Fitzgerald replied that the 

federal procurement process is lengthy and that the board still has 

to accomplish its task in the meantime. In light of that comment, 

Chair Markowitz proposed that the board request additional resources 

but also formulate a systematic approach. 

Member Pope asked if DOL could clarify which of the board’s 

recommendations have been approved and accepted. Member Berenji 

agreed and suggested a kind of dashboard that the board could use to 

keep DOL accountable. Member Domina wondered if the board’s work 

would be duplicated by the Version 3.1 of the Procedure Manual. 

Member Berenji replied that the dashboard would address that concern 

because it would map DOL’s data. In response to Member Domina’s 

comment, Chair Markowitz said that it’s the DOL’s position that it’s 

not the board’s position to review proposed policy changes. He 

acknowledged that that arrangement can be frustrating. 
Page 25 of 30

The board discussed a recommendation to request resources from DOL. 

Member Berenji advocated for the board to be as specific as possible. 

Member Silver clarified that the board wants an external contractor, 

such as the one that the NIOSH radiation board utilizes. Mr. 

Fitzgerald opined that the recommendation the board crafted will 

serve as a placeholder while it has further discussions. Member 

Silver proposed naming the Association of Occupational and 

Environmental Clinics as the desired contractor. Chair Markowitz 

disagreed, saying that the board is not clear at this point whether 

that Association even wants to do the work. Member Redlich said the 

recommendation should be as general as possible and Mr. Fitzgerald 

said that the availability of internal resources would likely be 

limited. 

Member Berenji moved to accept the recommendation, seconded by Member 

Redlich to request resources, such as an IT contractor, to provide 

personnel and IT support as required for the Board to conduct a 

systemic evaluation of an appropriate number and variety of claims to 

assess and ensure the objectivity, quality, and consistency of the 

industrial hygiene and medical evaluation that are part of the claims 

process. The board voted unanimously in favor of the motion. 

Chair Markowitz revived members’ earlier suggestion that the board 

aggregate its findings from its current round of claims review and 

that it hold a teleconference to discuss them in two to three months. 

Member Berenji proposed categories to organize the board’s thoughts 

on the most common issues. 

Chair Markowitz also asked if the board wanted to re-submit its 

request for the 80 additional claims. Member Friedman-Jimenez 

proposed writing up a summary of what the board has already reviewed 

and then deciding which, if any, claims it would like to request. 

Chair Markowitz pointed out that there’s a time delay and the request 

should be made sooner rather than later. Member Redlich added that 

the request was intended to give the board a chance to compare how 

the claims review process for certain disorders has changed over 

time. Member Friedman-Jimenez proposed that the board request a 

random sampling of cohorts and also request more cases for specific 

conditions of interest. Board members discussed how many of each 

condition should be requested. Members Friedman-Jimenez and Berenji 

advocated for the board to look at accepted claims in addition to 

denied claims. Dr. Dement concurred, saying that looking at both was 

the only way to assess consistency. 

Member Berenji echoed Member Friedman-Jimenez’s proposal for a random 

sampling of cases. Member Friedman-Jimenez replied that his idea was 

intended merely to get at the relative frequency of conditions, but 

that it might represent too much work for the board to examine a true 
Page 26 of 30

randomly sampled array of cases. Member Dement commented that the 

board doesn’t have current numbers about the relative frequency 

handy. Chair Markowitz recounted how that information had been 

requested in December 2018. Mr. Vance said that he doesn’t have a 

status update at this time. 

Member Redlich reminded the board that the December 2018 request 

already accounted for some trends the board had already noticed in 

its claims reviews. She went over some of the data the board already 

had around claims and relative frequencies and why that resulted in 

oversampling for lung disorder claims. Chair Markowitz pointed out 

that this data reveal that requests for claims for certain disorders 

cannot be filled because the disorders are not common enough. Member 

Redlich continued to go over the data that Member Dement had 

aggregated earlier. She reiterated her point that the December 2018 

data request was intended to see if there had been any changes from 

this data. Member Berenji praised the methodology that Members Dement 

and Redlich had developed and said she thought it could be applied to 

other physical systems. Member Dement volunteered to take this 

approach and apply it across the board to other disorders. 

After a brief break, members continued to discuss how many claims and 

which kinds should be requested from DOL. Member Redlich echoed 

earlier members’ comments that both accepted and denied should be 

reviewed, proposing specifically 5 accepted and 15 denied. Chair 

Markowitz noted that the decision-making path for conditions like 

sarcoidosis and chronic beryllium disorder is much clearer because 

it’s set forth in the regulations. He also recounted the original 

request, which was for 120 claims. The board has received 40, with 80 

claims related to lung disorders still outstanding. Chair Markowitz 

expressed the board’s desire to take advantage of any work DOL has 

done so far. Member Mahs suggested tacking on a request for an 

additional 5 claims, increasing the number of 25. Chair Markowitz 

replied that, because of the work involved, he’s reluctant to request 

claims that will not ultimately be reviewed. Member Redlich 

reiterated her earlier proposal. Mr. Fitzgerald explained that the 

board should use the request form discussed yesterday to submit these 

kinds of requests to DOL. 

Member Tebay asked that the board make a recommendation around the 

ongoing question related to the industrial hygienists’ continued use 

of boilerplate language stating that there was no evidence that 

exposures broached regulatory limits. Chair Markowitz commented that 

this relates to task four of the board and noted that it relates to 

the rescission of Circular 15-06. The Board observed, based on a 

review of a limited number of recent claims, that recent industrial 

hygienist assessments frequently use stereotypic language to cite the 

absence of monitoring data above the established regulatory levels in 

the mid-1990s. Member Tebay moved and Member Mahs seconded that the 
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board recommend that this language be omitted from the industrial 

hygienist's report. The basis for a negative exposure determination 

should be provided by the industrial hygienist in the report. Either 

the absence of monitoring data post-1995, or data showing exposure 

levels below regulatory limits should not be interpreted as 

representing an absence of significant exposure or risk. The Board 

voted unanimously in favor. Member Dement said that he wanted to 

ensure that IHs still felt free to use their professional judgment as 

necessary. 

Member Friedman-Jimenez said that the fact that the reports don’t 

already better reflect the IHs experience and judgment is part of the 

current issue. He said that they should rely on their judgment and 

the literature. Chair Markowitz added that the IH’s could talk to the 

claimants for additional information. Member Friedman-Jimenez agreed 

that the OHQ and the claimant’s recollections was the best place to 

start. Member Tebay echoed these comments and questioned why IHs 

weren’t being forced to reach out to current DOE project IHs. Member 

Friedman-Jimenez pointed out that there may be a conflict of interest 

for the project industrial hygienists, insofar as they are expected 

to maintain health and safety for their work site but also 

potentially to report on the quality of health and safety at that 

same site. Member Pope commented that the core issue was the fact 

that IHs didn’t have evidence to back up their assessments. 

Chair Markowitz asked Mr. Vance if reaching out to the project IHs 

had been discussed within DOL previously. Mr. Vance answered that he 

wasn’t aware of any effort to reach out to IHs at the sites and that 

they rely on DOE to transfer any relevant records. Member Mahs shared 

that, in his experience as a general foreman at some of these plants, 

he rarely encountered an IH on site paying attention to exposures 

other than asbestos. He said that onsite safety people often 

responded to other exposure issues. 

Member Redlich noted that the board’s issue with this IH language 

arises out of the fact that CMC’s tend to defer to the IH report in 

denying many of these claims. Chair Markowitz made another suggestion 

for the language in light of these comments. Member Silver asked if 

the recommendation should mention Circular 15-06. Chair Markowitz 

noted that the board raised this issue with Ms. Leiton yesterday and 

that she said that DOL’s position is that this does not contradict 

the rescission of 15-06. Member Dement reminded the board of the 

exact wording of the phrase from the IH reports. Member Redlich 

proposed requesting that IHs be clear about the source of their 

assumptions while also warning them that lack of data should not be 

construed as a lack of risk. Member Tebay reminded the board of the 

role that regulatory limits plays in this language. In response to 

Mr. Vance’s comment, Member Domina commented that DOE didn’t have a 

moratorium on destroying records until well after 1995. 
Page 28 of 30

Member Redlich asked for the board’s opinion on what would count as 

sufficient evidence for these kinds of conclusions in IH reports.

Member Dement supplied a list, including scientific literature, 

professional judgment, and personal experience. He said that, from 

the reference lists the board went over yesterday, IHs are not 

currently providing these kinds of references in their reports. He 

also said that the board shouldn’t be too specific in order to allow 

IHs to exercise professional judgment. 

Member Tebay asked Mr. Vance how these recommendations get 

distributed, because it impacts different tiers of the review process 

in different ways. Mr. Vance opined that the board and DOL will 

always struggle with the issue of interpreting the absence of 

information. He recounted how the ability to make these kinds of 

determinations was transferred from the CE to the IH. Member Silver 

commented that this will always be a discussion between the board and 

the IH, but that it can’t be an informed discussion unless the IH 

discloses her or his rationale for the conclusion in the report. He 

also said that this dovetails with the board’s longstanding request 

that IHs have greater contact with claimants. Member Friedman-Jimenez 

echoed this comment, saying that contact with the claimant is 

necessary due to the absence of hard data. The board workshopped the 

language further. Member Tebay moved to accept the recommendation, 

seconded by Member Mahs. The board voted unanimously to adopt the 

recommendation. 

Non-Cancer Outcomes of Radiogenic Substances:

DOL asked the board to examine the issue of non-cancer outcomes from 

radiogenic substances. The previous board has developed some language 

and is discussing it to ensure that it’s what DOL is requesting. 

Member Silver went over the language the board had drafted so far. 

Member Silver suggested that the board reach out to the NIOSH 

radiation board if DOL wants further work done. 

Review of Public Comments:

The board has received several written and spoken public comments and 

Chair Markowitz asked members to go over some of the larger themes. 

He said that the board would review a peripheral neuropathy claim 

where a public commenter charged that relevant exposure data that was 

missing from an IH report. Another comment suggested that the 2017 

Ombudsman report contained information relevant to the board’s 

mission. A third comment requested more information on the board’s 

position regarding impairment ratings for pulmonary disease. In 

response to this comment, Chair Markowitz suggested that the board 

request clarification from DOL. He reminded the board that he had 

requested that DOL attend all of the board’s meetings, either in 
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person or telephonically. Mr. Fitzgerald and Chair Markowitz agreed 

that the board did not need to reaffirm the prior board’s 

recommendations. Chair Markowitz proposed taking up the issue of the 

apparent seven toxin limit in the IH reports in a future meeting. He 

also said that the board would need to examine at a future meeting 

the preponderance of evidence issue that was raised yesterday to see 

if it was relevant to the board’s charter. 

Update, Presumption for Solvent-Induced Hearing Loss:

The board has not yet prepared a response to DOL’s effective 

rejection of the board’s recommendation.

Review of Board Tasks, Structure and Work Agenda

Chair Markowitz noted that the current board has not formed 

committees, as the prior board did, and has only one working group on 

Parkinson’s. Member Dement added that there was another working group 

on the OHQ and he opined that the working group was a reasonable 

replacement for the standing committee. The downside to working 

groups is that the public doesn’t have as much access. Member Dement 

argued that, unless there was pushback from the public, things should 

remain as they are. Chair Markowitz agreed that the working groups 

should continue, but encouraged the board to think further about the 

public’s access to them. 

Member Silver asked that the board remain scrupulous about redacting 

personally identifiable information from documents they submit to the 

record. 

Member Friedman-Jimenez requested that the medical profiles that are 

submitted to the board be submitted as searchable PDFs. Member Dement 

commented that some the documents are not legible and therefore 

searchable PDFs may not be entirely possible. He also said that 

optical character reading programs can be unreliable. He proposed 

indexing as a viable alternative and Member Friedman-Jimenez agreed. 

Chair Markowitz asked DOL if communications addressed to him are 

disseminated. Mr. Fitzgerald confirmed that DOL makes a determination 

as to relevancy and then publishes comments it receives on behalf of 

Chair Markowitz. Member Redlich asked Mr. Fitzgerald if he knows when 

the board’s requests for additional information will be fulfilled. 

Mr. Fitzgerald responded that that was why the DOL created the 

request form. 

The board will have a telephone meeting in about three months and 

another in person meeting in about six months. Chair Markowitz shared 

a list of board activities for the next three months that included 

developing synopses of the claims that have been reviewed in order to 

identify a common set of concerns that appear across claims. The OHQ