1

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES 

AND WORKER HEALTH

+ + + + +

MEETING

+ + + + +

TUESDAY

MAY 11, 2022

+ + + + +

The Board met via Videoconference, at 

1:00 p.m. EST, Steven Markowitz, Chair, 

presiding.

MEMBERS

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN

KENNETH SILVER

MIKE VAN DYKE

MEDICAL COMMUNITY

GEORGE FRIEDMAN-JIMENEZ

ROSE GOLDMAN

STEVEN MARKOWITZ

MAREK MIKULSKI
2

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

CLAIMANT COMMUNITY 

JIM H. KEY

DURONDA M. POPE

CALIN TEBAY

DIANNE WHITTEN

DESIGNATED FEDERAL OFFICIAL

MICHAEL CHANCE

ALSO PRESENT

KEVIN BIRD, SIDEM

JEFF KOTSCH, DEEOIC

RACHEL POND, DOL

CARRIE RHOADS, DOL

JOHN VANCE, DOL
3

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

CONTENTS

Board Requests for Resources ................. 14

Review of Claims ............................. 16

Common Language in IH Reports ................ 52

Continue Review of Claims .................... 96

Consistency in Beryllium Sensitivity ........ 128

Nominations for Next Term; Active Issues

For Board's Next Term ....................... 161

Adjourn ..................................... 177
4

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

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

(1:05 p.m.)

MR. CHANCE: Good morning and 

afternoon, everybody, let me get to my little 

script I have to read and we can get going. 

As all of you know, my name is Michael 

Chance, I'd like to welcome you to today's 

teleconference of the Department of Labor's 

Advisory Board on Toxic Substances and Worker 

Health. 

I'm the Board's designated federal 

officer, or DFO. Today's date is May 11, 2022, 

and this is Day 2 of two days of Board Meetings. 

As always, we appreciate the time and 

diligent work of our Board Members who prepared 

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. Today's 

meeting, just like yesterday, will be a virtual 

video meeting and I have with me Ms. Carrie 

Rhoads, from Department of Labor, Mr. Kevin Bird 
5

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

from SIDEM. 

He is our logistics contractor. As I 

said yesterday, please be patient with any 

technical issues or extra time we might be taking 

with the WebEx documents. 

They've been submitted yesterday so 

hopefully we will not see any glitches. A little 

bit about meeting operations and timing, we have 

a few breaks or at least one break on the agenda 

today. 

As you did yesterday, please do not 

disconnect from the call during the breaks. For 

Board Members, please just set your phone or 

computer on mute and unmute when we resume.

This will make it easier for Kevin to 

make sure he has everyone that's participating in 

the discussion. Like yesterday, I think it's up 

to you whether or not you want to keep your video 

on while you're not presenting and just listen.

Copies of all meeting materials are in 

written public comments and will be available on 

the Board's website under the heading Meetings, 
6

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

and the listing is there for this.

The documents will also be up on the 

Webex screen so everyone can follow along with 

the discussion. As you all know, but I'll read 

it out again, the Board's website is 

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

.htm. 

If you haven't already visited the 

Board's website, please do so. After clicking on 

today's meeting you will see a few helpful hints 

and a page dedicated entirely to the meeting 

today. 

The webpage contains publicly 

available material submitted to us in advance of 

the meeting and we will publish any materials 

that are provided to the Board. 

We had a robust public comment period 

yesterday so we will definitely be willing to 

hear all those comments. 

You should also find today's agenda 

and if you experience again any difficulties, 

please call or email energyadvisoryboard@dol.gov.
7

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Kevin will be able to straighten it 

out. Hopefully we won't run into any trouble. 

Please also note -- I think I've already said 

this but I'll say it again -- that computers or 

phones should be muted for non-Advisory-Board 

members.

There is no public comment session 

today. The call-in information has been posted 

on the Advisory Board website so public members 

today will not participate. Yesterday was our 

day to get in some good public comments. 

A little bit about the transcripts and 

minutes of the meeting, a transcript and minutes 

will be prepared from the meeting today during 

the Board's discussions today. 

As we are on the teleconference line 

and video, please make sure that you speak 

clearly because as always we are having this 

transcribed. 

As the DFO, I see the minutes are 

prepared and ensure they're certified by the 

Chairman, Dr. Markowitz.
8

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

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 available sooner, they will be published 

before that date. 

Also, I will be publishing verbatim 

transcripts which are obviously more detailed in 

nature. The transcript should be available on 

the Board's website in 30 days. 

Again, as I did yesterday, it's very 

important and I'd like to advise the Advisory 

Board members that there are some materials that 

have been provided to you in your capacity as a 

special government employee and Members of the 

Board, which are not for public disclosure and 

cannot be shared publicly including in this 

meeting. 

Please be aware of this as we continue 

with this meeting today. 

This material can be discussed in a 

general way which does not include using any 

personal identification information like PII such 
9

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

as names, addresses, specific facilities, 

specific cases being discussed or a doctor's 

name.

And again, please be mindful, Steven 

mentioned this yesterday and I mentioned it, that 

we are speaking on this for the next round for 

the Board. I encourage current Board Members and 

others here and serving to submit their 

nomination.

As always, we are very interested in 

promoting a diverse pool of Applicants so please 

do what you can to assist us in this endeavor to 

make the Board as representative of the 

population of the country as possible.

Information can be found on our 

website at the Advisory Board landing page or at 

the Federal Register. If you have any other 

questions on that, Carrie is always a very 

helpful resource.

So, I think with that, I will convene 

this meeting of the Advisory Board on toxic 

substances and worker health and I will now turn
10

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

over to Dr. Markowitz for introductions. 

CHAIR MARKOWITZ: Thank you, Mr. 

Chance. Welcome back, everyone, good morning, 

good afternoon, welcome back to Board Members, 

our colleagues from the Department of Labor and 

members of the public. 

It looks like we have 17 members of 

the public online so I think we should go through 

introductions quickly again. I think that's most 

easily done if I just call out people's names.

I'm Stephen Markowitz, I'm in 

occupational medicine, a physician, 

epidemiologist from City University of New York. 

Aaron Bowman? 

MEMBER BOWMAN: Yes, I'm Aaron Bowman, 

I'm Professor and Head of the School of Health 

Sciences at Purdue University. I have expertise 

in the area of toxicology and I'm happy to be a 

Members of this Board. 

CHAIR MARKOWITZ: Great. Dianne 

Whitten? 

MEMBER WHITTEN: Morning, my name is 
11

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Dianne Whitten, I'm a RAD contact at Hanford. I 

am on the Hanford Atomic Trade Council advocate 

and I'm also a member of WEW. 

CHAIR MARKOWITZ: Duronda Pope?

MEMBER POPE: Good morning, my name is 

Duronda Pope, I'm a retired Rocky Flats worker 

for 25 years and currently, United Steelworker's 

Director of Emergency Response team that responds 

to fatalities and critical injuries.

CHAIR MARKOWITZ: Thank you. George 

Friedman-Jimenez?

MEMBER FRIEDMAN-JIMENEZ: I'm George 

Friedman-Jimenez, I am a occupational medicine 

physician and epidemiologist, and my expertise is 

in clinical occupational medicine and 

occupational epidemiology including diagnostic 

testing and clinical epidemiology. 

CHAIR MARKOWITZ: Jim Key?

MEMBER KEY: Good afternoon, I'm Jim 

Key, I'm President of United Steelworker's 

International Union's Atomic Energy Worker 

Council based in Washington D.C. The Council 
12

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

represents the United Steelworkers at eight of 

the DOE environmental management sites across the 

nation. 

By trade I'm an electrician with a 48-

year employee at the Paducah Gaseous Diffusion 

Plant, I served 18 years as the local union's 

health and safety representative at the Gaseous 

Diffusion Plant.

I've been involved with the former 

rate Worker's Health since its inception in the 

late 1990s and early 2000 and the passage of the 

EOPA legislation. 

CHAIR MARKOWITZ: Ken Silver?

MEMBER SILVER: Ken Silver, associate 

professor of environmental health at East 

Tennessee State University. 

I've been on the Board since its 

inception in the same era that Mr. Key referred 

to. I lived in New Mexico and worked closely 

with Los Alamos workers and families to get the 

law passed.

And exactly 20 years ago today we had 
13

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

an overflow hearing at El Convento, a meeting 

space in Espanol in New Mexico, to hold the 

Assistant Secretary of Energy accountable for 

lapses in the compensation program and that 

generated momentum for the passage of Part E two 

years later. 

CHAIR MARKOWITZ: Marek Mikulski?

MEMBER MIKULSKI: Good afternoon, 

Marek Mikulski, I'm an occupational 

epidemiologist with the University of Iowa. 

Also, I direct a former worker program for 

the former DOE workers from the State of Iowa.

CHAIR MARKOWITZ: Mark Catlin?

MEMBER CATLIN: My name is Mark 

Catlin, I'm a industrial hygienist, I'm currently 

semi-retired, I retired in 2018 as Health and 

Safety Director for the Service Employees 

International Union and I'm happy to be on the 

Board. 

CHAIR MARKOWITZ: We're happy to have 

you. Michael Van Dyke?

MEMBER VAN DYKE: Mike Van Dyke, I'm 
14

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

an industrial hygienist and associate professor 

at the Colorado School of Public Health. 

CHAIR MARKOWITZ: Rose Goldman?

MEMBER GOLDMAN: Glad to be here. 

I'm a clinical occupational 

environmental medicine physician with decades of 

practice, also associate professor at Harvard 

Medical School and have a special interest in 

toxicology as well as metals and solvents. 

CHAIR MARKOWITZ: Let me turn it back 

to Mr. Chance who's going to tell us about the 

status of the Board's request for resources. 

MR. CHANCE: At present, we went out 

and did a little bit of market research, gathered 

a good amount of information from vendors that 

are interested in doing the work.

And we've been working with Steven and 

I'm sure others on the Board have been helping 

him to try to flesh out the proper expertise 

they're interested in and trying to cost that 

out, government contracting cost per hour for 

those respective job types. 
15

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

And so at the present time, we are 

continuing to finalize the paperwork on that and 

the next step is that it will be moving through 

clearance in the Department and I think we need 

more on that. 

Steven, you have to help me with this 

because there's been a lot of back and forth. 

Have you finished your review of the statement of 

work?

CHAIR MARKOWITZ: Yes, I sent in 

multiple comments, they were accepted and there 

is a final performance work statement. 

MR. CHANCE: Yes, so right now that's 

where we are and Steven, I think that's pretty 

much all I can say for today and I'll just keep 

you updated on the process of it. 

But it is moving forward and at this 

point it's going to go into departmental 

clearance and we'll what happens with it from 

there. 

CHAIR MARKOWITZ: Any timetable?

MR. CHANCE: Can't commit to anything 
16

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

at the moment. 

CHAIR MARKOWITZ: As you all warned, 

it's a protracted process but we look forward to 

the end. Let's move along. Kevin, if you could 

just bring up the Board's charter for a moment so 

we could just take a look at it? 

Before we go back to reviewing claims, 

I just wanted to remind Board Members of what we 

need to pay attention to as a board. 

These are the focusing of our tasks by 

the charter and ones the most relevant for review 

of claims I think is 2, medical guidance, the 

claims examiner for claims under Subtitle E with 

respect to the weighing of the medical evidence 

of claimants. 

I should say that also includes 

Subtitle B of the act. 

And the fourth bullet, the work of the 

industrial hygienist and staff positions and 

consulting positions of the department and 

reports of such hygienists and physicians to 

ensure -- here are the key words -- quality, 
17

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

objectivity, and consistency. 

And then finally, the next bullet 

item, which is that it's within our scope to 

examine and weigh in on the claims adjudication 

process generally, including review of procedure 

manual changes. 

So, we just keep that in mind as we go 

through the claims. 

I am collecting what I would call 

areas of concern, taking notes on the comments on

the claims, not specific claims per se but just 

general areas that are repeatedly touched on as 

we discuss claims.

And then towards the end of the 

meeting we need to decide what the next steps 

are. 

I'm not sure that we're going to have 

a chance to review all the claims today but we're 

having a very good discussion and we also see 

repetition of many of the same issues in various 

claims. 

So, I'm not sure that we actually need 
18

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

to get through every last claim but we'll try.

We're going to start now so you can 

actually take that off. We're going to start now 

with claims review. I want to front-load that 

Dr. Van Dyke looked at because he needs to go 

through each class at 2:00 p.m.

So, I think we should start with the 

beryllium claim, the last four digits is 2157, 

and the two reviewers are Dr. Van Dyke and Dr. 

Silver. 

And while you're looking through your 

notes on that, let me just call out the next one 

we'll do, which is a Parkinson's Disease claim 

that also involves Dr. Van Dyke and Dr. Goldman. 

And that's 9787. 

So, the first one will be 2157, 

beryllium, and then we'll go to 9787. It doesn't 

matter what order we go in in terms of the 

reviewer, whether Dr. Silver or Dr. Van Dyke, you 

want to start on the beryllium claim, entirely 

up to you. 

MEMBER VAN DYKE: I can start, this is 
19

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Dr. Van Dyke. So, the beryllium claim, just a 

quick note, this is actually two claims. This is 

a claim in 2018 for beryllium sensitization and a 

claim in 2019 for CBD. 

This is an individual who worked for 

many years at a beryllium contracting facility 

that was covered by DOE. This guy worked for 45 

years at this facility. 

And I think from an exposure 

standpoint this is a fairly easy case because his 

exposure was substantiated by a letter from the 

facility saying that he was exposed to airborne 

beryllium during the course of his work. 

And according to the procedure manual, 

if you worked for more than one day in one of 

these covered facilities, you become covered for 

your beryllium claim. 

So, I think the exposure piece is 

easy, I think what's interesting about this claim 

is that this is an individual that was referred 

to a physician in 1990 for abnormal chest X-ray 

and he was worked up for the potential of 
20

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

beryllium disease in 1990, including CT, 

including a biopsy, including beryllium blood LPT 

as well as BAL LPT. 

In 1991 he was diagnosed with 

sarcoidosis and this was mostly on the basis of a 

negative blood LPT, negative BAL LPT. So, 

really, no evidence of beryllium sensitization.

But he did evidence of granulomas on 

biopsy, which is a hallmark of both sarcoidosis 

as well as chronic beryllium disease. So, the 

case goes cold until 2018 when this case was 

filed. 

This was subsequent to a positive or 

abnormal blood LPT. So, in 2018 he filed for 

beryllium sensitization on the basis of this 

abnormal LPT. 

He was awarded beryllium sensitization 

and subsequently, it seems like fairly quickly 

after that was awarded, he filed for CBD benefits 

under Part D, and this was substantiated based on 

the medical information from 1990. 

So, I think what's interesting is the 
21

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

only thing standing in this individual's way of a 

CBD diagnosis was really evidence of beryllium 

sensitivity which was found in 2018.

They did look at would this individual 

have met the diagnostic criteria for CBD prior to 

1993 and what they found was he definitely had 

exposure to beryllium but he only really met two 

of the three criteria for two of --

He didn't meet three of the required 

criteria for the 1993 diagnosis. So, I think 

from an exposure standpoint, it's an easy case, 

it was substantiated that he was exposed to 

beryllium. 

It does bring up some of the 

difficulties with the diagnostic criteria for 

beryllium disease and I'm not sure there's an 

answer to it because there actually are some 

people who do get diagnosed with sarcoidosis that 

work with beryllium.

So, it is a difficult case from that 

perspective and I think it's unfortunate that it 

took 30 years for a diagnosis of chronic 
22

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

beryllium disease, but I'm not sure how that 

could have been avoided necessarily.

CHAIR MARKOWITZ: That's really 

interesting. Dr. Silver?

MEMBER SILVER: That was an excellent 

summary, Dr. Van Dyke. 

The only thing I would note that I was 

not aware of is an authorized representative was 

from the Human Resources Department of the 

company that had the contract to do beryllium for 

the Government. 

And there's no evidence that company 

representative took any money but it just goes to 

show how thoroughly institutionalized this 

benefit program has become throughout the DOE 

complex and subcontractor complex. 

It seems to be handled as a routine 

matter of health insurance, not health insurance 

but an EOC claim by someone at the company, which 

is progress. 

CHAIR MARKOWITZ: I'm actually looking 

at the procedure manual because certainly with 
23

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

those it was an issue that the Board had dealt 

with early on in 2016, 2017. But I don't know 

whether you all had a chance to look at this, 

Page 178?

Let me just read it to you.

Quote, under Part D the DEEOIC 

recognizes a diagnosis of pulmonary sarcoidosis, 

especially in cases with pre-1993 diagnosis dates 

could represent a misdiagnosis for CBD. 

As such, a diagnosis of pulmonary 

sarcoidosis is not medically appropriate under 

Part B if there is a document and history of 

beryllium exposure. 

In those situations, a diagnosis of 

sarcoidosis is a claim for beryllium sensitivity 

and/or CBD. 

Under Part E, if there is a diagnosis 

of pulmonary sarcoidosis but no affirmative 

evidence in the form of a positive BeLPT or a 

BeLTT, the CE indicates the condition as

sarcoidosis, not CBD.

That's a little confusing but the 
24

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

procedure manual actually addresses this point in 

the last statement and said if there's no 

positive BeLPT, the claims examiner identified 

the case as CBD.

But it's not clear whether that 

applies to pre-1993. So, in any case, I also 

don't know when this part of the procedure manual 

was new or at what point his original claim was 

adjudicated. 

In any event, there is some detailed 

language in the procedure manual about 

recognition of sarcoid as a fairly high 

likelihood of actually being a CBD. It's worth 

taking a look at. 

MEMBER VAN DYKE: Steven, I think the 

only issue with that is in the 1990s you actually 

had negative blood LPT and negative lavage LPT. 

It ruled out somewhat beryllium disease at that 

time. 

It's tough, definitely a tough case. 

From a medical perspective, it underscores the 

potential importance of continuing to get an LPT 
25

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

on a serial basis more than anything else. 

CHAIR MARKOWITZ: And we don't need to 

discuss the medicine here but actually, for at 

least the doctors on the Board, whether his 

underlying sarcoid was accelerated when his BeLPT 

became positive would be an interesting issue.

But I think not for today. Any other 

comments on this case? Let us go to the case of 

Parkinson's Disease, also with Dr. Van Dyke and 

Dr. Goldman, 9787. 

MEMBER GOLDMAN: Who do you want to go 

first?

CHAIR MARKOWITZ: Entirely up to you. 

While you're deciding, the next one up after that 

is going to be 0014, which is Jim Key and myself. 

Go ahead. 

MEMBER VAN DYKE: I can start, or you, 

it doesn't matter to me, go ahead. 

MEMBER GOLDMAN: I'll just present a 

little bit from the medical because I actually 

had some IH things that maybe you could address. 

So, basically this is a person who presented 
26

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

with a resting tremor.

By the way, this person had exposure 

to what looks like potassium permanganate and he 

was referred for both IH and the expert medical 

examiner. 

The presentation started with resting 

tremor, which puts it more in the category of 

more idiopathic Parkinson's Disease, rather than 

a manganese or that type of Parkinson's that 

tends to start more with the walking and 

stiffness problems. 

The other thing that was sort of 

against it from the medical point of view is it 

was a gap of 18 years from the last significant 

exposure and onset, also making that less likely. 

There was an IH review and it looked 

like -- this is interesting and I'll wait for Dr. 

Van Dyke. His only exposure was potassium 

permanganate and in the SCM that is listed as 

something associated with Parkinson's because of 

the Manganese. 

But I have to say I tried to look up 
27

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

whether potassium permanganate could cause 

Parkinson's and I wasn't able to find it. It's 

beyond the scope of what we're doing to try to 

see how much it would absorb and actually get 

exposure to manganese.

But it seemed to me this was a 

reasonable review including the IH and a 

qualified CMC who gave a very potent analysis and 

reasoning why this was denied. 

So, I'll turn it over to you Michael.

MEMBER VAN DYKE: I would agree, it's 

a pretty well thought out case. 

Before I talk about the IH, I will say 

I think the main reason this was denied was based 

on the CMC review saying that they didn't believe 

this particular Parkinson's was related to 

chemical exposure. 

But in terms of the IH, I think brings 

up some interesting issues. This individual was 

employed for more than 30 years and was exposed 

to lots of different things in their line of 

work. 
28

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

There wasn't a lot of documentation 

but it feels like they zeroed in on potassium 

permanganate because potassium permanganate was 

on the list in the CEM, or the FEM, sorry, of 

things that could be associated with Parkinson's.

So, I think that's the reason they 

zeroed in on that particular chemical. In the IH 

review, they state this person was significantly 

exposed to potassium permanganate at low to very 

low levels and not above regulatory levels.

I don't necessarily disagree with the 

overall assessment of the industrial hygienist, I 

just think in all the cases I reviewed it brings 

up the imprecision of the language in the IH 

reviews. 

First of all, everyone that I've 

reviewed so far talks about the word significant. 

And I think significant really combines the 

concepts of frequency, duration, and intensity of 

exposure and may mean different things to 

different people.

In addition, when folks talk about the 
29

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

regulatory level this again is ambiguous and it's 

unclear whether they're referring to the 

contemporary regulatory level at the time the 

sample was taken or the current regulatory level 

at the time the report was written.

So, I think there's definitely some 

work that could be done to really make that 

language more precise. 

And then I think the biggest problem 

is, really, this use of high, low, moderate, very 

low terminology that really appears to only be 

defined in the mind of the industrial hygienist 

writing the report. 

Now, I think you get three industrial 

hygienists together and we could agree what high, 

medium, and low looks like. But I think when you 

try to translate that information to the 

physician, they're going to have a very different 

idea of what that means. 

I've spent most of my career working 

with occupational physicians and those terms 

don't mean the same thing to an industrial 
30

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

hygienist as they mean to an occupational 

physician. 

So, I really think there needs to be 

some work in terms of really defining what those 

terms mean and making sure the language is a 

little more precise, and I think that's 

particularly true since we're trying to 

communicate across disciplines where words mean 

different things.

So, if we could be more precise it 

would add to the consistency of this process. 

But in terms of the actual case, I believe they 

came to the right conclusion and my only concern 

is just the overall issues around the IH reviews 

and the imprecision in the language. 

MEMBER GOLDMAN: I just want to say I 

couldn't agree more heartily with what Dr. Van 

Dyke just said, there are issues throughout and 

also, what does significant mean? 

It has a different meaning in 

epidemiology and significant could mean many 

things to different people and you're totally 
31

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

right about the different standards. So, I agree 

a lot and I think this is an issue we've seen 

through many of the cases. 

CHAIR MARKOWITZ: Thanks, and we'll 

follow up in just a few minutes with Mr. Kotsch 

about this so it's good timing. Let me just add 

very briefly, when I see the word significant, I 

interpret that as meaning capable of causing 

disease. 

And so when I see significant combined 

with very low to low, I find that confusing 

because normally, very low to low doesn't cause 

much disease. That's just to reinforce Mike's 

point that these words mean different things to 

different disciplines. 

Let's move on, there's a case of 

cancer, 0014, that Mr. Key and I are involved 

with looking at. Let me just say in terms of 

who's on deck next, after this we will do a 

chronic lung disease case with Dr. Van Dyke and 

myself actually. 

0014, Mr. Key, do you want to go first 
32

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

or do you want me to go first?

MEMBER KEY: Go ahead, Dr. Markowitz.

CHAIR MARKOWITZ: This is a 

straightforward case of a person in their 60s, 

worked at a Southern DOE facility. 

She developed lung cancer, thyroid 

cancer and her job title for five years was 

administrative assistant where she had a second 

title which was very closely related but it was 

clearly administrative work. 

And it was a denial, both the lung 

cancer and the thyroid cancer, in that it was 

judged that she didn't have sufficient exposure 

to produce the cancer. 

They zeroed in on possible asbestos 

exposure and I agree with the conclusion that 

there really wasn't sufficient evidence to 

demonstrate that she had enough exposure. 

The other question I had on this case 

was that in her occupational health 

questionnaire, she identified that she used to go 

to different buildings to deliver reports and 
33

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

also that she used to handle contaminated 

records.

I'm sure that was part of her thinking 

in submitting the claim and I didn't see it, 

actually, in the industrial hygiene report that

those issues were addressed, I may have missed 

them, big file.

But I didn't see the consideration of 

where her specific issues or questions were 

actually addressed in the report. But overall, I 

agree with the overall decision. 

The last point is that in the 

industrial hygiene reports, I don't see listed 

what they review in producing a report. 

I see a standard, largely unchanged 

list of references but I don't see which 

documents they actually looked at it in writing 

up their review, which I think should be part of 

the process.

That's all I have. Mr. Key, any 

comments?

MEMBER KEY: No, sir, I agree with the 
34

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

other comments you just presented. 

CHAIR MARKOWITZ: Okay, we're going to 

move on to this next case. After this, in terms 

of who's on deck, we have a case of chronic lung 

disease, it's Mr. Key, it's Dr. Friedman-Jiminez 

and it's 2282. 

If you want to pull out your notes 

there but right now we're going to 7016, another 

chronic lung disease case with Dr. Van Dyke and 

myself. 

Dr. Van Dyke, do you want to go first? 

MEMBER VAN DYKE: Sure, this one is 

definitely a harder case with respect to exposure 

than some of the other ones we've looked at. 

So, this is a case of somebody that 

submitted a pulmonary fibrosis claim that was 

denied. 

This was an individual who was a lab 

tech for many years at a facility and when they 

talk about their exposure, they talk about their 

exposure to lots of different things, metals, 

plastic opacities, urethanes, silicone potting 
35

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

materials.

They talk about exposure to solvents, 

they talk about exposure to several metals as 

well as possibly silica. 

They list a long list of things that 

they're exposed to and then you look at what 

causes pulmonary fibrosis and among those things 

you look at what causes pulmonary fibrosis in the 

SCM and it seems that you zero in on those 

particular exposures that are associated with 

pulmonary fibrosis and SCM.

It turns out they start to focus on 

things like asbestos, aluminum, carbon graphite, 

calin, silicone, silica, as well as titanium 

dioxide. And throughout the assessment, they 

confirm exposure to these things to low or very 

low levels.

But now we have a confirmed exposure 

to something that's associated with these 

outcomes and mostly the case hinges on the denial 

by the CMC. And so the physician basically says 

this doesn't look like asbestosis.
36

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

The CT scan is not consistent with 

hard metal disease, exposures aren't high enough 

for any sort of pulmonary fibrosis due to carbon 

exposure. And in the end, this doesn't look like 

silicosis as well.

I think that in the end it really 

hinges on the opinion of the physician that this 

doesn't look like any of the diseases that would 

be associated with any of those particular 

exposures that they delved into.

I think one of the concerns that I 

have is that there were lots of exposures that 

really weren't explored much, I think 

particularly thinking about exposure to some of 

these epoxy resins wasn't thought about very 

much.

But it's not on the list of positive 

agents for pulmonary fibrosis. 

So, I understand that each one of 

these is not a research project but I do think 

that a little thoughtfulness in terms of some of 

these other exposures may have been warranted in 
37

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

this case. 

Steven?

CHAIR MARKOWITZ: On the medical end, 

the doctors at CMC decided this was not 

asbestosis. I think it's unlikely to be 

asbestosis but I disagree with the physician's 

logic. 

He basically read the findings on the 

CT scan as representing that's called usual 

interstitial pneumonia, or pneumonitis, and 

frankly, those findings overlap with asbestos of 

the lung tissue itself. 

He or she said, I can't remember, that 

the absence of total plaques, the scarring of the 

lining of the lung, meant that it wasn't 

asbestosis, that's not correct. 

So, I disagree not with the ultimate 

decision but with the way in which the CMC 

evaluated the case. 

Also, as a lab technician, the 

likelihood of them having sufficient asbestos 

exposure to cause asbestosis, which generally 
38

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

requires a higher level of exposure, it's pretty 

low.

On the exposure side, a 35-year lab 

technician is tough because to have any 

exposures, 1966, it's in the earlier days of DOE 

and frankly, this is the kind of person I think 

where an interview of the person would have given 

a lot of insight into the intensity and frequency 

of their exposures over the years. 

And that didn't happen. I'm just 

looking at my notes here. 

The claimant did write a letter in 

2020 about her work, and I can't tell whether the 

industrial hygienist looked at that letter or not 

when they produced a report for the same reason I 

mentioned before. 

So, those are the limitations that I 

identified. Let's continue here, I think we're 

going to do 7716, another chronic lung disease 

case. Is that the one I mentioned? 

I think so.

MEMBER SILVER: On deck?
39

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

CHAIR MARKOWITZ: Yes, I think my 

notes are a little confusing here. I think it 

was 7716, yes, that's Dr. Goldman and Dr. Silver, 

chronic lung disease. 

MEMBER GOLDMAN: If it's okay, I would 

like to do this one and contrast it to 2560 if 

you don't mind. 

CHAIR MARKOWITZ: We can do that one 

next, that's good. 

MEMBER GOLDMAN: Because I think this 

illustrates a very important point and let me 

just do both of them and get Mr. Catlin involved. 

But I think it's very interesting just to 

contrast these two that are similar in some ways 

but come up with a different outcome. 

Let me just pull up my notes here 

first. In the case of...we'll do the one you 

selected first which was 7716. This was a person 

who already had a claim accepted from 

pneumoconiosis.

And so he had a B-reading that 

described small opacities, SNT diffuse upper, 
40

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

middle, and lower lungs S/T but no plural 

abnormalities. 

But he was already accepted for 

pneumoconiosis and it was up to the CMC to now 

give it a permanent rating.

And in both of these cases, they did 

the same thing, they use the AMA guide's 

definitions of the lower limit of abnormality. 

LLN, and then in this report, this CMC pays 

attention to the claimant has a report of 

breathlessness. 

And on the pulmonary function test, 

and I know we have some non-physicians here, what 

you do is you look at the FEV1 which is how much 

air you can blow out forcefully, the FCC, which 

is how much comes out in six seconds. 

And you're looking at the ratio of 

FEV1 to FVC because if it's lower it means 

obstruction and also in the case of interstitial 

lung disease we're looking at something called 

the single-breadth diffuser capacity and also 

lung volumes. 
41

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

So, this particular CMC looks at the 

whole picture, doesn't restrict itself, excuse 

the pun, to restrictive lung disease. 

The person has a normal FEV1, a normal 

FVC, a normal diffusion capacity but has a 

slightly lower FEV1/FVC of 74 percent when 

there's a lower limit of normal of 76 percent. 

So, this is a very subtle difference 

and using the AMA guide, which at some point you 

could show this where the ratings are, on the 

rating scheme not necessarily restricting for 

restrictive lung disease, the zero percent 

category excludes a lower FEV1/FVC so this CMC 

person goes to the next category and this is 

easier to see, meaning see if you could show that 

chart that I sent to you, which is I think 15 --

hold on I have it here. 

The next class, Class 1, is 0 percent 

and the next class is 10 percent to 25 percent 

impairment of the whole person. 

And so this CMC says given the 

symptoms that the person is having and its very 
42

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

slight decrease in FEV1/FVC, you can't put him in 

the Class 1 so I'm going to give this person 15 

percent impairment of the whole person. 

Now, the reason I appreciate being 

able to contrast this to the other one, in the 

other situation which is 2560, this is a person 

who has plural plaques and again, the CMC is 

asked to and already compensated for that to 

assess pulmonary impairment due to plural 

plaques. 

The CMC also has the PSPs, also refers 

to the AMA guide to impairment, does the same 

thing using their data and a lower limit of 

normal but this time the CMC totally organizes 

the approach to whether or not only the 

abnormality suggests a restrictive disease is 

present.

So, this CMC looks at FEV1/FVC 

diffusion capacity and since they're all above 

the lower limit of normal, as actually a large 

total lung capacity of 116 percent and actually 

has a reduced FEV1/FVC ratio of 66 percent.
43

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

So, clearly and actually some other 

things, small, some reduced flow in the small 

airways. So, in this case the person has some 

evidence of obstructive lung disease. 

So, the question comes into this, 

well, should that be part of the consideration 

here? I'm doing an impairment for pulmonary but 

are we going to restrict it just to restrictive 

or interstitial lung disease?

And also, this claimant also had a lot 

of symptoms which were also ignored, which could 

be part of a rating system because there's a 

dyspnea rating system.

So, in this case the CMC took the data 

and because there was no evidence of restrictive 

lung disease at all, ignored the findings of the 

obstructive lung disease and gave the person zero 

level of impairment. 

One could argue that may be legit if 

you're only restricting yourself to restrictive 

lung disease. 

On the other hand, one could argue 
44

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that in some cases, there could be some 

underlying obstructive disease and also, there 

was no attention to other things he may have 

gotten exposed to.

But I basically just wanted to put 

those two cases out because the approach of the 

CMC was different. 

Similar cases with this person having 

actually a more reduced and more evidence of 

obstructive lung disease who got no percent 

impairment and the other person with a very 

subtle finding getting a 15 percent impairment. 

Thank you for the opportunity to 

present both of these cases and be able to 

contrast them. 

CHAIR MARKOWITZ: Thank you for 

raising the issue of consistency. Dr. Silver, on 

the case you looked at, your comments --

MEMBER SILVER: Yes, one additional 

factoid and one question for the doctors. He 

also had a squamous cell carcinoma of the lip.

MEMBER GOLDMAN: They compensated for 
45

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that.

MEMBER SILVER: Right, the site 

exposure matrix found arsenic at the uranium 

mill, probably all of them because it was a 

component of the ore.

 But the question is this, I have more 

than a lay understanding of occupational lung 

disease, so what struck me is here we have

recognized pneumoconiosis and then when he tries 

to get this program to recognize pulmonary 

fibrosis he's denied for pulmonary fibrosis.

Did that turn on the lung function 

test? 

MEMBER GOLDMAN: I thought he was 

compensated. Did I misunderstand that? 

I thought they acknowledged that he 

had pneumoconiosis and he already had 

compensation for that. They just wanted to know 

the level of pulmonary impairment. 

Maybe I misread it.

MEMBER SILVER: Yes, but he was --

see, this is the thing, I've heard this in other 
46

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

cases. He was compensated by the Justice 

Department, which handles uranium workers for 

pneumoconiosis.

And then when he comes over to this 

program they say, yes, you have pneumoconiosis 

but in the weeds of the file they say, no, you 

don't have pulmonary fibrosis.

How often does that happen? Is it 

medically possible to have recognized 

pneumoconiosis without pulmonary fibrosis?

MEMBER GOLDMAN: I think you could 

have in the case of asbestos a few plural plaques 

and have no fibrosis. I believe in this person's 

case he did have fibrosis and he didn't have 

plaques. 

So, in the case of plaque, you could 

have plaque and have asbestos-related plural 

disease and no fibrosis or you would have 

pneumoconiosis I guess, unless you say that 

pneumoconiosis is only with fibrosis.

Some cases of silicide you see spots 

but you don't actually have pulmonary impairment. 
47

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

It's a dust-related disease.

MEMBER SILVER: I know, so that would 

be my understanding but I'll just throw out the 

page references. We won't get into them now, 

maybe I'll copy them and send them to a few of 

the doctors.

It's Page 178 and 185. This program 

said, no, no pulmonary fibrosis but we'll honest 

the Justice Department's pneumoconiosis 

recognition. 

If you go out to the world of 

diagnosing physicians out there in America, the 

program could get a really dicey reputation if 

there are lots of people with recognized 

pneumoconiosis who are struck down for pulmonary 

fibrosis I think. 

MEMBER GOLDMAN: I'm sorry, I thought 

this came up in a previous meeting in which there 

was an issue in which sometimes people have 

pulmonary fibrosis and it wasn't listed this 

could be asbestosis and vice versa.

MEMBER SILVER: That's the converse, I 
48

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

understand there are causes of pulmonary fibrosis 

that are not dust, that's a separate issue. 

Here he's recognized to have the dust 

disease of the lungs by the Justice Department, 

that's accepted. 

But then for pulmonary fibrosis this 

program says no. I'll provide the page 

references and copies and maybe I'll be all wet 

but it just jumped out at me. 

CHAIR MARKOWITZ: The other case that 

Dr. Goldman went over. Mr. Catlin, do you have 

any comments?

MEMBER CATLIN: I do, not on the part 

that Dr. Goldman covered so well but he also was 

denied a claim for basal cell carcinoma and this 

person was a long-time roofer sheet metal worker.

The SEM provided lots of 

identification of the types of potential 

exposures to coal tars and benzoapyrene and 

asphalt and other things that you would expect, 

especially with a roofer doing built-up roofing.

Two things stuck out, one was there 
49

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

was a decision made that the carcinoma was on his 

nose. 

There was a decision repeated several 

times that because it was on his nose, it 

couldn't have been work-related because it would 

have had to be on his hand because that's where 

he would have had the exposures. 

I think that's an example of a

question that could have been answered with a 

short discussion with the claimant about his work 

and what the potential exposures were.

My experience with roofers is that 

they can have exposures in all uncovered parts of 

the body. So, that's interesting. 

The second part which I thought was 

especially interesting given our discussion on 

hygiene is like we've seen in other cases, the 

exposures are identified through the SCM.

The hygienist is referred to make a 

deeper assessment but they make an assessment

that there are all these exposures. But they're 

essentially insignificant in terms of the levels. 
50

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

The CMC actually made a comment in 

their report that said this industrial hygiene 

decision doesn't make any sense to me because 

roofing involves asphalt, et cetera. 

And so in this case there was actually 

a difference of opinion where the physician is 

questioning the industrial hygiene conclusion. 

Now, it doesn't seem to have made any 

difference in the case and it doesn't seem like 

that resolved anywhere but I think it's 

interesting to show that at least this physician 

didn't seem to understand why, why it didn't make 

any sense to them why the hygienist downplayed 

the exposure. 

Those are the two things I thought 

were valuable in the other parts. 

CHAIR MARKOWITZ: Let me ask you a 

question about the skin cancer. Was that denied, 

essentially, by the CMC who said no causation?

MEMBER CATLIN: Yes, and that was 

essentially a combination of insignificant 

exposure, but also because the carcinoma was on 
51

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

the nose, that ruled it out as being 

work-related, which I can tell you I found -- I 

wouldn't have just gone right there without 

having talked to the claimant. 

CHAIR MARKOWITZ: It was a long-time 

roofer?

MEMBER CATLIN: Yes. 

CHAIR MARKOWITZ: Sounds bizarre to 

me. Any other comments? 

MEMBER GOLDMAN: The CMC, were they 

commenting on the cancer or their letter was 

mostly directed to the pulmonary?

MEMBER CATLIN: The report that I 

reviewed was in the middle of the claim and it 

was only about the basal cell carcinoma part and 

not the impairment part. 

It was a confusing case because I had 

several parts all mixed together which made it 

interesting to review. 

CHAIR MARKOWITZ: We've seen the 

numbers have a very high percentage of nonmelanoma skin cancers that are compensated. Any 
52

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

other comments? Otherwise we're going to 

interrupt our claims review for a bit to speak 

with Mr. Kotsch. 

Thank you, everybody. Mr. Kotsch, if 

you wouldn't mind unmuting yourself and be 

introducing yourself to the group? 

MR. KOTSCH: Sure, I'm Jeff Kotsch, 

the manager of medical and health sciences unit, 

of which the industrial hygiene program is a 

part. I'm not an industrial hygienist, I'm a 

certified health physicist but I'll try to do my 

best with these things. 

As far as your question, do you want 

us to go through them one by one or how do you 

want to approach them? 

CHAIR MARKOWITZ: We have to make sure 

that we leave time for questions. If you want an 

initial couple comments, that's fine, otherwise 

we can go straight to the questions. 

MR. KOTSCH: We can just start with 

the questions if you like.

CHAIR MARKOWITZ: Maybe it's easiest, 
53

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

considering the participation of the public, if 

you scroll down a little bit? 

What we have here for people is the 

Board two weeks ago submitted some questions to 

the program, which very nicely gave us a rapid 

turnaround on responses that we received maybe 

yesterday I think. 

In any event, if you could scroll up, 

Kevin? The first question was we've taken note 

that many industrial hygiene reports referred to 

the fact that existing regulatory standards have 

not been exceeded.

There's no evidence they've been 

exceeded in particular claims. So, first 

question, again, Kevin, if you could just scroll 

up so we can see the response at the same time as 

we're looking at the question.

But the first question is what are the 

regulatory limits that are being cited in these 

reports? 

MR. KOTSCH: As you can see, the 

Department of Energy historically has not adhered 
54

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

to the OSHA limits or the PELs but have followed 

the lower, in almost all cases, ACGIH threshold 

limit, value time-weighted average levels.

And there's a discussion in there from 

that indices document what defines the TLV TWA, 

the TWA concentration for conventional 8-hour 

work days is a 40-hour work week, to which it is 

believed all workers may be repeatedly exposed 

day after day, or working a lifetime without 

adverse effects. 

In essence, the DOL or the DOE applied 

the most restrictive standard or we applied the 

most restrictive standards and best information 

of DOE's worker occupations. 

We looked at each on a case-by-case 

basis since there are obviously different sites 

around the complex. 

MR. VANCE: Dr. Markowitz, this is 

John Vance.

I was chatting with Jeff and our 

industrial hygiene team this morning and I think 

one of the public commenters yesterday was 
55

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

talking about the existence of reports about the 

OSHA standards and I don't think what we're 

trying to say here is that you're not going to 

see OSHA standards coming up. 

It's just that when we're looking at 

it from our perspective and the knowledge of our 

industrial hygienist, this is what they're 

looking at and this is what they're seeing as 

part of the measures and sampling and that sort 

of thing, is the reference to these standards 

from the ACGIH.

That's the basis here so I think that 

don't get it wrong, we will see OSHA standards 

referenced but I think that from a safety and 

health perspective, most of these sites are 

trying to get through the more restrictive 

thresholds that were reported out by the ACGIH. 

CHAIR MARKOWITZ: In 1995, DOE 

promulgated Rule 440 or Rule 440.1, I may get my 

numbers wrong. Prior to 1995, what DOE guidance 

rule determined what standards were followed? 

MR. VANCE: I don't know that. Jeff, 
56

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

do you have any idea?

MR. KOTSCH: I don't know that, I know 

that in 1995 440.1 came into effect but I am not 

aware -- that relates to the DOE worker safety 

and health program. I can't say whether existed 

before, we'd have to check on that. 

MR. VANCE: I think one of the 

concerns here is that what we're acknowledging as 

a program is starting in that timeframe or right 

around 1995, there was a much more stringent 

effort to improve the occupational safety and 

health monitoring of employees.

So, that's where you start seeing 

this. There will always be arguments about 

whether or not Department of Energy complied with 

those or enforced them rigorously at all the 

sites. 

But we're merely acknowledging that 

reality. 

The other big issue here is people 

need to understand that even with the existence 

of these references to within regulatory limits, 
57

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

this is still an exposure characterization, this 

is still a profile that is being prepared for a 

physician to consider in establishing whether or 

not a disease is contributory or aggravated by an 

exposure that is even within that regulatory 

limit.

So, we do have instances where someone 

can be exposed to a toxin that is within this 

ACGIH threshold, which a physician could look at 

and still opine as long as they had some sort of 

rationalization to support such a position, that 

that exposure was sufficient in their mind to be 

a significant factor in contributing to a 

disease. 

So, keep in mind this is information 

that a physician has to weigh on and you're 

right, I think this was a prior comment that came 

up. 

It is really left to the judgment of 

the physician and whether or not they're working 

with what they have in reaching that type of 

conclusion.
58

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

CHAIR MARKOWITZ: Just to follow up on 

Rule 440, did 440 reference TLVs of ACNJ as the 

standards to follow? 

MR. KOTSCH: I'm not that familiar 

with that order. We'd have to check on that one. 

CHAIR MARKOWITZ: 440 was filed later 

by 851 I think. Was 851 the next major relevant 

safety rule after 440?

MR. KOTSCH: There was a 441(a) in 

1998. I don't know the particulars of that 

change but you're right, that did evolve in the 

10 CFR 85 in 2006. 

CHAIR MARKOWITZ: What year was 851?

MR. KOTSCH: 2006. From what I 

remember, back in the 1990s I was actually a 

consultant on the HP side of DOE when they were 

developing the RAD CON, the radiation control 

manual. 

And I know there was a companion move 

on the IH side but I wasn't at all familiar with 

what they were doing then, but back in the early 

1990s they were definitely moving on both sides 
59

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

of the safety and health fronts to formalize the 

programs. 

CHAIR MARKOWITZ: So, between 1995, 

Rule 440 and 441 in 2006, which is 851, and 

between 2006 and the present, 851 still rules so 

to speak, presumably ACGIH modified various TLVs 

in the interim period. 

And so how do the industrial 

hygienists deal with the change in KLDs in the 

interim periods as they look at claims that go 

back years, decades, and the like?

MR. KOTSCH: The IH review is now 

basically the current -- I'm not going to go 

through the gyrations of all the different 

changes that may occur for different toxins over 

time.

So, they're basically applying their 

knowledge of what the current limits are, which 

are obviously more restrictive than what they 

were in the past. 

Certainly, back then they would be 

more restrictive than what it might have been in 
60

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

the past. 

CHAIR MARKOWITZ: We're going to 

continue with these questions, I just covered the 

next couple questions anyway. 

(Simultaneous Speaking.) 

If other Board Members have comments 

or queries, feel free to just jump in. 

MR. KOTSCH: You pretty much covered 

the second one, too, about the changes of the 

regulatory limits over time. 

CHAIR MARKOWITZ: That's correct. 

They've gotten more conservative and restrictive 

with time.

MEMBER CATLIN: Dr. Markowitz, I had a 

question. his is probably a good time to deal 

with it. 

Understanding that choosing some 

system for these exposure limits to have some 

comparison for it is necessary and certainly, the 

ACGIH is a pretty common one.

The things I read that you provided 

and that I've seen with my own experiences, the 
61

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

ACGIH has consistently talked about the TLVs as 

levels that would protect nearly all workers. 

I think back 25 years ago there was a 

lot of controversy within our profession and in 

the medical community about that. 

When OSHA tried to update their PELs 

using ACGIH, there were a lot of detailed looks 

in it, that this protecting all workers was not 

really well defined and it could have varied from 

protecting 95 percent of workers to maybe only 75 

percent of workers exposed at those levels.

So, it might be something the 

Department wants to engage with the ACGIH and 

look both historically and currently as to this 

language. My experience has been that 

when especially non- occupational medicine

doctors who have greater knowledge see this 

language, they interpret this to mean, oh, if the 

exposures are below the ACGIH then they probably 

can't have occupational disease. 

And I think that gets misinterpreted 

often and so I think that's something that needs 
62

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

to be further investigated.

MEMBER GOLDMAN: I think that's a 

really well taken point and it's an interesting 

here from one who saw -- when OSHA first came in 

and set their standards, their standards were 

actually more it seems like than ACGIH.

And there was a lot of concern that 

the professionals in ACGIH were consulting a lot 

with industry. But then over time OSHA, because 

of all the contention about some of their 

standards, had lagged behind tremendously. 

And in terms of some safe and glaring 

examples, for example being lead, actually, other 

professional organizations including ACGIH have 

proceeded to update standards or health-based 

standards. 

And you're correct, ACGIH, their 

standards may not be as protective, let's say, as 

some European standards. 

So, if I see somebody to say is this 

work-related or not, or that's the possibilities, 

I would look at the primary literature as well as 
63

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

all of these varying standards to see where it 

comes in. 

So, I actually think your point is 

really very well taken. 

CHAIR MARKOWITZ: I'm going to move on 

to the next question, which is what constitutes 

the various types of evidence that demonstrate 

that regulatory limits have been exceeded?

Here I just want to briefly mention to 

the public that in general there are two types of 

standards, there's a short-term ceiling limit 

that might be exceeded for 15 of 30 minutes. 

And then there's the standard that 

applies to the full 8-hour day. In occupational 

medicine we mostly focus on the chronic exposure, 

the 8-hour limit rather than the very short-term 

limit.

And so the answer to this question, we 

can read that in part it says after the mid 

1990s, the principal source are employers in 

investigative reports communicating exposure 

incidents or events that may have placed the 
64

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

employees in an exposure dynamic that was 

recognized as outside of accepted occupational 

safety and health standards. 

So, what is that? 

MR. VANCE: This is John. I think 

what we're talking about is from our experience 

of looking at these cases and I know this 

personally in looking at case files, generally 

there will be some incident or event that occurs 

that brings the employer into the work 

environment to do some sort of monitoring, 

whether that's a particular toxin, a particular 

chemical, or an incident or an accident that's 

occurred. 

So, they'll come in and do some sort 

of assessment of the situation and do sampling 

and other types of monitoring activities. That's 

the kind of information that we would see in an 

individual employees's DAR.

And then that would drive the

understanding by the industrial hygienist as to, 

yes, there was a viable exposure beyond what was 
65

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

allowable in this particular scenario.

That's just our experience in looking 

at files. Jeff, I don't have if you have 

anything more you want to add to that?

MR. KOTSCH: Yes, that's primarily 

user incident reports or off-normal reports 

appear in the DOE records that we receive or the 

DIHs that receive the review. 

They're not often but usually, at this 

point in time that we're talking about after the 

mid 1990s, DOE, even on the rad side, certainly 

before that on the rad side, the radiation side, 

when they had an off-normal event when something 

triggered a potential exceeding of the regulatory 

limits, there would be an incident report 

written, an accident report depending on what the 

actual situation was.

That would generally go under the 

person's DOE file and we would collect that 

information and forward it to the Department of 

Labor for review. That would be included in 

there.
66

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MR. VANCE: I think we also see 

instances where after the mid-1990s we see a lot 

of instances where they're doing these recurring 

employee interviews and asking about occupational 

dangers that the employee felt were relevant.

And so every once in a while we'll see 

an employee complaining about an unusual smell or 

some other type of event or activity that they're 

concerned about and that would bring in someone 

looking at the scenario to try to figure out what 

was going on.

These are all very case-specific

scenarios that we see from our experience in 

looking at the files. 

MEMBER TEBAY: Can I speak here? 

Currently, I'm an employee at Hanford and I was a 

sheet metal worker here for lots of years. 

There is no guarantee that even in an 

incident where we've exceeded those limits of the 

sampling equipment, that information is going to 

land in any kind of database that's accessible. 

A lot of times, the smart thing to do 
67

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

is to collect that data from your contractor, 

employer, and keep it for your own personal 

files. 

Because that doesn't mean it's going 

to make it into the medical, it doesn't mean it's 

going to make it into the DOE database, it just 

doesn't guarantee anything. 

Second, we have areas we enter daily 

that are demarcated by signings that would 

determine whether that's a rad area or there's 

some kind of toxic chemical exposure, beryllium, 

et cetera. 

Now, I can enter those areas daily and 

there may never be an incident but that doesn't 

mean you're never being exposed. It just means 

that at the point of where that rad equipment is 

located, it's not detecting that exposure. 

And we need to understand and I need 

to understand and CMC needs to understand that a 

lot of these work, somewhat of a scenario of my 

roles, my responsibilities, the work process, the 

procedure, it's outside. 
68

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Meaning that these outside sampling 

tools were in an outside when the area -- or a 

tank farm. A tank farm is a bunch of tanks 

underground, sampling equipment is above ground 

in certain areas surrounded by a fence. 

So, we're not necessarily patching 

every single exposure every time there is one, 

you're going to get incidental exposure, you 

might get one every single day, it just may not 

be caught by the sampling equipment on that site. 

MR. KOTSCH: You are correct, that's 

an inherent problem depending on how sampling is 

done. 

MR. VANCE: I would merely add that 

could very well be the case and what we're 

talking about is what is the available evidence 

that an industrial hygienist or the claims 

examiner has access to during the information 

collection stage. 

So, what we're simply saying is that 

in the instances where we've seen it, this is the 

kind of information that we have. But it doesn't 
69

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

exist in the file or the DAR records, then it's 

not going to be something we can consider.

That's why it's important for us to 

get as much information from the claimant during 

the occupational history questionnaire and give 

the claimant the opportunity to try to identify 

anything that they feel is missing in the 

adjudication of their case.

MEMBER TEBAY: Sure, and I agree 

that's a tough spot to be in where the 

infrastructure doesn't exist. 

On the other hand, I think we're 

seeing a trend in these IH reports that often end 

in every one of these exposures on these claims 

where the IH says there is no data to support 

that or no data or any evidence available that 

any of these exposures were significant, or they 

were significant but they were under regulatory 

limits, or they were incidental. 

That draws a conclusion for the CNC 

that, hey, there was really never any exposure so 

how could there be any occupational disease, 
70

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

which then draws the conclusion for the CE to 

deny the claim. 

So, I think we've created this because 

there is no available documentation. 

It seems to me all these claims and 

what we're seeing on a trend in the last two 

days, and we're going to see it in every claim I 

review, is that these IH reports often, more of 

than not, continue to hinge on the lack of 

documentation. 

Even though the SIM will identify 

those exposures exist, because there's no 

evidence that they were actually exposed to 

those, we're going to lean to denying the claim.

MR. KOTSCH: Semi-satisfies the 

potential for exposure, that is what toxins may 

be available to be exposed in the tank farm in 

the building or on any particular site. 

Obviously, that doesn't always mean that a person 

gets that exposure.

And the lack of records is obviously 

an issue that makes the IH reviews more 
71

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

qualitative than on the Part B side where we do 

the radiation exposures. We have much more 

quantitative information so that's obviously a 

drawback to the IH side. 

But using professional judgment and 

knowledge of systems and processes --

(Simultaneous Speaking.) 

-- to try to define an exposure. 

CHAIR MARKOWITZ: I have a specific 

question. At the sites much of the work was done 

by major contractors. Was it the contractor that 

employed the industrial hygienist? 

And if so, were any data that were 

generated by the industrial hygienist activities, 

would they be retained by DOE in the DAR process? 

MR. KOTSCH: Currently, the 

contractors do employ the IHs. DOE does have IH 

Staff that's oversight but for instance, the 

contractor themselves would house all of that IH 

data.

Now, a lot of times, when the 

contractors leave the site or on some kind of 
72

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

contractual obligation that information is turned 

over to DOE to put into a database. 

But we've known on site for years, all 

of that does not always get transferred to DOE. 

There's stuff that's missing. So, it's a hit and 

miss scenario in my opinion. 

CHAIR MARKOWITZ: Let me ask Mr. 

Kotsch. Going back in time, I think Kayla was 

talking about the present, going back to the 

1980s, 1990s, the early 2000s, did contractors 

routinely give whatever monitoring -- or perhaps 

they just didn't monitor very much. 

There wasn't much to give. And in 

fact, in the response to the next question we're 

looking at now, I just want to read. 

It says in the absence of any 

incidents or circumstances that would warrant 

investigation by occupational health and safety 

experts, the employer generating sampling data 

are usually available and then later on you say 

except for a river and Rocky Flats, they were 

much better about this. 
73

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

So, the thing is for chronic 

occupational diseases, meaning COPD, asbestosis, 

or the cancers, these are things that we've been 

looking at. 

The incidental exposures or the 

accidents really don't matter because that's not 

what causes those diseases.

What causes those diseases is ongoing 

exposure. If the data doesn't exist, then they 

don't exist. And as you said, Mr. Kotsch, then 

you rely on expert judgment really. 

MR. KOTSCH: I think that is valid and 

I know the industrial hygienists, especially in 

the early years, tried to if possible sign and 

potentially hire exposures because of the fact 

that we don't know.

There certainly probably wasn't much, 

if any, monitoring, even up until the early 

1990s. So, that's definitely an issue. As far as 

the contractor information, I don't know. 

I know even on the radiation side, a 

lot of times that resides with the contractor 
74

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

organization of, you're right, maybe when a 

contractor leaves it gets transferred over to DOE 

but I don't know how routinely it is normally on 

the IH side. 

That would show up in our information 

package that comes in. 

But, yes, absolutely, the early days, 

obviously there was no monitoring, it's 

professional judgment and basically the rest of 

the assessment process to try to determine a 

level of exposure. 

CHAIR MARKOWITZ: So, the next 

question we're looking at here is if no evidence 

concerning workplace exposures is available in 

either direction above or below regulatory 

limits, for a given claim is the conclusion 

usually drawn that regulatory limits have not 

been exceeded?

And the answer is yes. My question 

is, is it factually more accurate to conclude 

that we do not have available data to determine 

whether levels were above or below regulatory 
75

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

limits. 

Does that statement capture the 

underlying reality better? Rather than focusing 

on one part of that which is that we don't have 

data that show it would exceed.

Well, the truth is we don't have data 

that show either direction. 

And so a more factual representation 

would be simply that the data was not collected 

that permit us to determine whether regulatory 

standards were exceeded or not. 

MR. KOTSCH: That may be valid but 

still in the 1990s period, we're saying they 

could have been exposed up to the regulatory 

limits so it's not that they didn't have any 

potential exposure. 

And obviously, we don't know that 

level without monitoring but they could have 

obviously been exposed up to, essentially, or at 

least been considered to be exposed up to the 

level, the regulatory limit.

So, it's not like they didn't have any 
76

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

but you're right, in the absence of data we don't 

know one way or the other per se. 

CHAIR MARKOWITZ: I don't mean to 

dominate this discussion, I'm just trying to 

follow the questions. If you have comments or 

questions jump in. 

The next question is what sources of 

information do the industrial hygienists or the 

reports really use to examine frequency, 

intensity, duration, which are the key variables 

in understanding the significance of exposure. 

And the response is that the IHs rely 

on their credentialed subject-matter expertise, 

professional experience, essentially expert 

judgment. 

And then it says that many of the IHs 

previously worked or have firsthand knowledge of 

DOE-related operations and work processes.

And I don't mean to read this whole 

thing, I think this is on our website but if not, 

it will be. The fourth line says necessary to 

apply reasonable discretion to assign level of 
77

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

exposure.

And to do that, the IH undertakes a 

careful review of the agents in question and 

unique factors of the employee's work history. 

And then it lists the source of information that 

the IH uses. 

So, just to summarize, though, in the 

absence of monitoring data, what you have are 

experts who have some knowledge of the sites who 

are looking at whatever is available in terms of 

the description, the qualitative description, and 

then making a judgment about the meaning of those 

exposures.

Did I get that correct?

MR. KOTSCH: I think that's the 

essential. Basically, they're looking at 

whatever information is available. 

The EE3 is basically the employment 

history, the occupational health questionnaire, 

or the interview, the intake of the workers, 

response to the various types of questions about 

his or her work activities, locations, things 
78

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

like that.

And obviously, that gives us some idea 

of what maybe potential toxins were in those 

buildings or sites or whatever the person was 

working at, and any other information that was 

submitted by the claimant. 

And if there were, indeed, any kind of 

off-normal reports that the claimant might 

provide, whether it's during this process or even 

afterwards when it gets to the recommended 

decision stage where they disagree the decision 

from DOL. 

They can provide additional arguments 

or information to be reconsidered potentially by 

the industrial hygienist. 

CHAIR MARKOWITZ: By the way, I agree 

with that process in general. I think that's 

what we do occupational medicine is take our 

knowledge and apply it. 

But Dr. Van Dyke actually raised an 

interesting question earlier in the meeting and 

he had to go teach.
79

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

How do you address the issue of 

consistency among the various IHs in the 

contractor in calling something, some exposure, 

very low moderate? 

It's easy to imagine what's low to one 

industrial hygienist might be either very low or 

moderate to another. Do you know how they 

address that? 

MR. KOTSCH: You're right, obviously 

you would get differing opinions or you could 

potentially get that, there are a couple of 

things that are happening, they try to make it 

consistent. 

So, one is there was a review by the 

contractor at the contractor level where 

everything comes together before it comes to us. 

Certified industrial hygienists are 

reviewing all those things and thinking about 

I've seen this, we've been providing for this 

period of time in the 1950s or the 1960s, this 

particular level of exposure at a particular site 

as far as those kinds of things.
80

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

And then at our level we have one of 

our CIHs that basically looks at every one before 

it goes out. 

And he has a pretty good memory as far 

as what we've seen at different sights, what

levels we're assigned for different toxins at 

different facilities for different occupations.

And I don't know if John has any other 

insight but that's primarily how the consistency 

is arrived at. 

MR. VANCE: And the only thing that I 

would add is that when it comes to the actual 

characterization of exposure, it came up in an 

earlier discussion about the significant, low, 

moderate or high.

In the procedure manual, we do fairly 

descriptive examples of what those things mean 

but it really is a matter of bifurcation. 

Insignificant means that the lowest 

threshold of exposure that a industrial hygienist 

can give without saying no exposure, anything 

above that is going to be a significant exposure 
81

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

characterized by either the low, moderate, or 

high designation. 

And that is really at the discretion 

of the industrial hygienist to discern from the 

comprehensive review of the information available 

to them what's the appropriate designation. 

And then turning to what Jeff is 

talking about, yes, the contractor has internal 

quality control measures that they're trying to 

align those reports that are being generated 

based on the historical application of what we do 

and the process.

Then we have a federal certified 

industrial hygienist looking at that to make sure 

that in general the quality of those reports is 

acceptable for us to process and pay the 

contractor for the cost of each one those 

referrals.

And then this process is designed to 

just frame out and provide information that then 

gets fed to another expert, a physician looking 

at that and then trying to interpret that 
82

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

information in a way that's going to allow that 

doctor to come along and offer a theory of 

causality. 

And I think the discussion that we've 

had is very appropriate in that, yes, the issue 

here is how does the doctor interpret that 

information? 

It's really a matter of the doctor's 

judgment and interpretation and you get very 

similar situations which come to very different 

conclusions, simply because of the expert looking 

at it. 

So, the process is what creates the 

uniformity in that we allow for this process to 

work as it is, all the way through this 

adjudication process. 

And then our decision process allows 

for additional input from claimants or their 

advocates or other experts that want to weigh in 

on these things to try to get to an ultimate 

outcome that everybody can maybe agree on. 

So, yes, that's where you get the 
83

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

differences of opinion that say this is going to 

be the challenge here, the different variables 

that have been looked at by experts.

CHAIR MARKOWITZ: I'm sorry, I missed 

that. What's the definition of significance? 

MR. VANCE: If you go to the procedure 

manual, it breaks it into two different 

categorizations. 

Incidental, which is just 

from my understanding and I'll let Jeff chime in 

too here, industrial hygienist will never say 

that you had no exposure but what you will say is 

the lowest threshold of exposure that they can 

reasonably assign is incidental, it uses the 

world incidental in passing only. 

If the exposure in their opinion is 

above that level, then it's significant and they 

would assign the low, moderate, or high, and I 

think they used different kinds of 

characterizations.

But it's basically those three tiers 

of significance. So, look at it first as did 
84

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

this person have anything above an incidental 

exposure. If the answer is yes then it's 

significant, low, high, or moderate, however they 

do it.

Jeff, do you have any additional 

thoughts on that?

MR. KOTSCH: That's great. 

Basically, the dichotomy is either 

incidental, essentially in passing only, like 

when you fuel up your car, that exposure to the 

gasoline vapors is incidental, you're not doing 

that eight hours a day. 

And then the rest we consider 

significant with the gradation of low, moderate, 

or high. And then the different frequencies, 

essentially. 

You're right, obviously the definition 

of significance to us may be different to what it 

is to a toxicologist or an epidemiologist or a 

physician. 

CHAIR MARKOWITZ: And just to close 

out these questions, this is the language that's 
85

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

included in a lot of the reports since February 

2022. We asked for some examples from some 

claims, some excerpts from some claims about, 

actually, where the regulatory limits were 

exceeded.

And you provided four and one I 

couldn't find where it said it actually exceeded 

the regulatory levels. The other three, it 

exceeded it for one day. 

As you said before, the monitoring was 

done around incidents, accidents, and those are 

relatively brief. 

That's when monitoring was done and 

found at high levels. As I said before, one day 

of exposure isn't going to impress most CMCs in 

terms of chronic diseases but those were the 

examples you were able to provide.

I don't review that many claims and 

I've never seen a claim in which there was 

ongoing industrial hygiene sampling that 

demonstrated ongoing exposure of any level. 

I take it it probably doesn't exist or 
86

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

it doesn't exist very much. 

MR. KOTSCH: Obviously, we don't see 

chronic monitoring results that are results of 

chronic monitoring above the regulatory limits. 

We're not seeing that or at least we haven't been 

provided with that. 

That doesn't mean it doesn't happen 

but I would think in the current regulatory 

climate of, say, the mid-1990s, those types of 

things would obviously be frowned upon and 

situationally corrected to bring those levels 

back into compliance.

You're right, an acute exposure one 

day is obviously not a major contributor probably 

to a chronic condition. 

CHAIR MARKOWITZ: Except for the World 

Trade Center, but we'll leave that alone. Board 

Members, any questions or comments?

MEMBER WHITTEN: This is Dianne 

Whitten, I just have a comment. Can you guys 

hear me? I have trouble with my speaker. 

I just feel like the statements that 
87

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

the Department of Labor is making on these claims 

assumes there was constant monitoring and caution 

taken around the employees, and that's just not 

true. 

34 years out here, I've never had an 

IH check, sample, or monitor the jobs that I was 

on until 2010. There was nobody there when I was 

standing in primary coolant water on the back of 

the reactor monitoring the chemicals, and this 

was in the mid-1990s.

There was nobody there monitoring me 

when I was lowered into a pink farm pit valve, 

there was no monitoring, and that was in the late 

1990s. I think you're just assuming much on the 

monitoring side. 

That's all I had to say.

CHAIR MARKOWITZ: Other comments?

MEMBER KEY: Jim Key here. I agree 

with Ms. Whitten's comments, particularly one 

review of some claims that have been denied. 

The IH portion of the report or the 

denial refers to claims of inventory of certain 
88

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

chemicals on site that they found either by the 

contract's purchasing reference or whatever.

But it's a fallacy because what 

actually happens with these locations, if you 

have a chemical that is suddenly outlawed, let's 

take TCE, and the contractor is then advised to 

find a more worker-friendly, less hazardous 

chemical to utilize, that doesn't mean that 

contractor at that site went around and collected 

all of that particular chemical that had been 

outlawed and took that out of operation. 

The ambulatory at those sites will 

continue to be used up and beyond whatever 

deadline of removal or outlaw of the chemical 

occurred until the inventory was depleted.

As Ms. Whitten said, and others have, 

as we look back at Subpart E and how FECs were 

set up, a lot of those were set up on the basis 

of there was no documentation of exposure to 

workers.

And I think the same should hold true 

for Subpart E. There was no monitoring done on 
89

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

any job sites up until the late 1990s, early 

2000. 

Every day exposure to TCE or to other 

chemicals occurred on a routine basis and it 

seems like some of these contract IHs that are 

brought in to review these claims have no 

knowledge of the work site whatsoever.

After a denial has been given, we have 

even had affidavits filled out by coworkers, 20 

to 30 coworkers, bracing the historic knowledge 

of exactly what occurred at these sites.

And I don't see that those affidavits 

prove or were even considered in a 

reconsideration of a claim. That's the end of my 

comment. 

MEMBER TEBAY: This is Calin Tebay, I 

have one last comment. To follow up with what 

Diane said, very rarely do we have personal 

monitoring devices, they're area monitoring 

devices. 

So, I'm just going back to this IH 

report, what they have for data to base their 
90

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

assessment on, the information does not exist for 

them to say you were guaranteed exposure this day 

on this job. 

But I will say some of these IH 

reports in their professional opinion have also 

included that there is no evidence that the 

individual engaged in any activities that would 

have put them in a position for potential 

exposure when that IH has absolutely no basis for 

that comment.

Because they don't understand or they 

are not educated and don't understand the work 

processes at these sites. So, broken record 

here, I'm back to the same complaint. 

I get there's a lack of information, a 

lack of data for that IH, I get that there's a 

lack of records. 

I understand that they're working with 

not much information but when we say they're just 

providing professional opinions, it's gone beyond 

that and the way it's being communicated as Mr. 

Van Dyke said earlier, is it draws this 
91

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

conclusion that there's no significant exposure, 

it is incidental at best. 

If it is significant it's low, and 

being it's lower in significance means there can 

be no chronic illness. And none of that is true. 

So, I think there needs to be a little 

bit of an education process or a rework to your 

IH procedures so they don't just draw these 

conclusions. For anything that's not FEC, it's 

like a guaranteed denial. 

 So, I hope we can take this 

conversation and use it to improve the procedure. 

CHAIR MARKOWITZ: Any other comments?

MEMBER SILVER: This is Ken Silver. 

One of the cardinal sins of evaluating and 

managing risks in the government and elsewhere is 

to decide on a desired policy outcome and then 

find facts to support that outcome. 

I'm going to keep an open mind and not 

rush to judgment that's what's going on here. 

I'll entertain the hypothesis which you gentlemen 

have asserted that in the era since 1995, DOE 
92

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

sites look to ACGIH standards or guidelines. 

And what about immediately preceding 

it, which I would bound from the early 1970s, 

when OSHA was finding its legs, until the mid1990s. Would you assert that in that 

earlier era as well DOE cites preferentially 

looked to ACGIH guidelines over OSHA standards? 

 

MR. KOTSCH: I don't know the answer 

to that. We have to look at that. I'm not going 

to speak to that. I'm not quite sure if they 

were doing the OSHA standards or the other ones. 

MEMBER SILVER: I think the context 

from our standpoint is that it was an attempt by 

the program to try to respond to some input from 

the Board in the past or conversation about the 

Board, trying to provide more context of what 

that, within regulatory limits, phrase meant. 

And so because we're looking at OSHA 

in the mid-1990s, this is what we were looking at 

because it's always been the position of the 

Agency that at some point there was a really 
93

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

concerted effort by the Department of Energy to 

make this a much more serious effort on their 

part to protect worker health. 

Prior to that time, that didn't exist 

so we have a much more open to interpretation 

kind of view that the industrial hygienists are 

going to assume there was not that type of 

structure that was in place so they're more free 

to look at potential exposures above what would 

normally be considered the safe threshold. 

So, this is the challenge right here,

if that's not the acceptable language or the 

acceptable context to frame it, what would be the 

alternative viewpoint in the absence of 

definitive sampling data? 

That's the struggle. So, I think we 

don't have really an answer for you on that. 

All we're looking at in response to 

this particular topic or the post-1990s is this 

is the rationale that our industrial hygiene team 

came up with to explain that phrase.

Smack dab in the middle of the 1990s 
94

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

the mission at a lot of DOE sites switched over 

from production to environmental remediation and 

the predominant model for training workers was 

the OSHA HAZWOPER standard. 

It's often said you can't step site on 

this DOE or any other hazardous waste sites 

unless you've heard HAZWOPER training. 

So, for the surging hazardous waste 

remediation workforce, we do assert that after 

1995, the safety technicians and the occasional 

IH working for those cleanup contractors looked 

at ACGIH TLVs rather than OSHA PELs. 

That would be a logical extension of 

what you're claiming. 

MR. KOTSCH: We considered those. I 

think the IHs would consider the ACGIH numbers 

generally to be more restrictive.

MEMBER SILVER: It's certainly 

challenging. 

But if I were to get my hands on the 

old Tiger Team reports circa 1990, you'd expect

to find more references to OSHA limits or more 
95

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

references to ACGIH limits looking backwards from 

1990. 

MR. KOTSCH: That, I don't know. Like 

you said, you'd have to look at them. Obviously, 

the Tiger Teams were the impetus for a lot of 

things, both on the RADCOM side and the rest of 

the safety programs. 

MEMBER SILVER: One last thing about 

contractor records, I had an experience right 

after Energy Secretary Hazel O'Leary said that 

she had worked out an agreement with the 

University of California, which is three DOE 

sites, over ownership of record.

For a long time UC claimed that if 

they created a record, they owned it and that was 

causing a whole lot of trouble in the era of 

contemplating the former work program and looking 

at past illnesses. 

A FOIA officer out of Albuquerque 

tried to explain records missing from monitoring 

reports, stacked monitoring reports, on the wacky 

assumption that maybe the missing pages were 
96

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

owned by the University of California and the 

pages they gave me were still owned by DOE.

So, has the contractor ownership issue 

really been solved and is it at all possible that 

contractors hold on to the incriminating results 

and just leave behind a token amount of 

uninteresting records under the ownership of DOE?

I documented that in a letter to the 

editor of Environmental Health Perspectives. I'm 

not making it up for this. Anyway, those are my 

thoughts.

CHAIR MARKOWITZ: Thank you. If there 

are no other comments, I want to thank Mr. Kotsch 

and Mr. Vance for straightforward answers to 

these questions, very interesting, very 

illuminating, so thanks a lot. 

We're going to take a break until 3:13 

p.m. and we'll come back and review some more 

claims. Thanks.

MR. KOTSCH: Thank you for your time.

MR. VANCE: Thank you very much. 

(Whereupon, the above-entitled matter 
97

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

went off the record at 2:57 p.m. and 

resumed at 3:14 p.m.)

CHAIR MARKOWITZ: Back to review of 

claims, we'll go until 4:00 p.m., we're not going 

to be able to do all of the claims but that's 

okay. Claim 2282, it's a chronic lung disease 

reviewed by Dr. Key and Mr. Friedman-Jiminez. 

Have we done that, 2282?

MEMBER FRIEDMAN-JIMENEZ: We didn't 

discuss it.

CHAIR MARKOWITZ: Let's discuss it and 

then after 2282 we're going to do, a heads-up for 

Ms. Pope and Mr. Tebay, 2347. First, we're going 

to do 2282 and then 2347. 

MEMBER FRIEDMAN-JIMENEZ: Are we going 

to do 8472, Parkinson's Disease?

CHAIR MARKOWITZ: Yes, we are. Let's 

go.

MEMBER FRIEDMAN-JIMENEZ: 2282, Mr. 

Key, would you like to start or should I start? 

MEMBER KEY: No, sir, go ahead and 

start. 
98

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: I think this 

is a very quick case. I agreed with the 

decision, this is a man that worked for six 

months, got COPD, is a smoker, and the exposure 

considered was asbestos exposure, which he likely 

had some. 

He was an electrician who was tearing 

out some ventilation ducts for part of those six 

months. 

I think the asbestos standard is 

reasonably protective for COPD and asbestosis and 

his brief exposure period, and the very likely 

lack of violation of the OSHA or ACGIH standard 

for asbestos make the likelihood of his being 

exposed at a sufficient level to cause COPD very 

low. 

So, I have no criticism of this case, 

I just did think the IH report should have 

discussed the work activity of disassembling HVAC 

ducts but the exposure was likely to be so brief 

and probably fairly low, and unlikely to have 

been the cause of his COPD. 
99

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

So, I agreed with the conclusion and I 

didn't think there's much to discuss. 

CHAIR MARKOWITZ: Thank you. Mr. Key?

MEMBER KEY: I have no additional 

comments.

CHAIR MARKOWITZ: Great, we're going 

to move on to 2347, it's Ms. Pope and Mr. Tebay. 

Just while they're bringing it up, on the on-deck 

circle is 6463, it's a chronic lung disease, Ms. 

Whitten and Dr. Bowman. 

First, we will do 2347 and then we 

will go to 6463. Duronda, do you want to go 

first? 

MEMBER POPE: I'd rather you go first, 

I'm getting my notes together. 

MEMBER TEBAY: I'll go first, although 

I think I probably agree with the outcome. It 

seems there was a lack of diagnosis. 

I would say that for the claimed 

condition, although there was a second condition 

for chronic lung disease, the individual had 

identified specific exposures that they may have 
100

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

incurred during their employment. 

I think the SEM search was decent, I 

think it didn't agree with all those exposures 

but it also identified some additional exposures. 

On the other hand, once again, you're 

going to hear the same from me, you're going to 

go back to the IH where that's confusing 

communication from the IH on the word incidental 

versus significant versus low.

I don't understand. I kind of 

understand it but I don't agree with the 

language. 

Although the IH I think did a very 

detailed assessment, you passed that to the CMC 

and it kind of draws a conclusion, and although I 

do agree the CMC's conclusion is very detailed, I 

think they both did their jobs.

I think we're stuck in that lack of --

and that's what I'm going to go back to -- every 

single exposure that was identified in this claim 

and every paragraph where the CMC identified the 

potential exposure, it also states there's no 
101

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

evidence to support there was any exposure.

There's no record, there's no 

evidence, there's no evidence the individual 

engaged in any of those activities or had use of 

those potential or significant exposures. 

And therefore, the exposures would not 

have exceeded existing regulatory standards. 

Although I'm okay with the quality and the 

general claim itself, I'm going to fault back to 

the CMC and the IH. 

I don't think it really paints the 

correct picture. 

CHAIR MARKOWITZ: Thank you. Ms. 

Pope?

MEMBER POPE: Yes, I agree with Mr. 

Tebay. In this case, it is complete information 

in my opinion that it jumps to the absence of 

curtailing data contrary to the highly unlikely.

And then it states that it wasn't 

enough evidence to support or necessary to 

develop the claim. I think a lot of that goes on 

in a lot of these cases that states that they 
102

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

identify that the condition exists but there's no 

evidence to support it.

And so it just goes back to when we 

initially identified this language issue within 

the cases back in the early days of 2016 of the 

Board. We identified these same issues about 

this language that jumps back and forth.

Even though it's highly worded to say 

that they do identify that this particular 

claimant does have these aggravating illnesses, 

would they still go back to this highly unlikely 

that you were exposed to that? 

Sometimes that's offensive to me 

because I feel like the IH or the CE don't really 

have the knowledge of how these sites operated.

A lot of times in the job category 

like an RCT, like an operator, chemical operator, 

like I myself was, and a lab technician, there's 

a lot of times that we moved around and a lot of 

times in these areas that we were exposed to. 

They had no education about how these 

sites really operated and to draw a conclusion 
103

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that it was highly unlikely that you were exposed 

to these types of chemicals or exposure. 

Sometimes it's offensive. 

CHAIR MARKOWITZ: Okay, thank you. 

So, you think the IH got it wrong, basically?

MEMBER POPE: Yes. 

MEMBER TEBAY: And I'm with Duronda. 

In a sense I think the IH got it wrong 

but if you read it, from what you experience it's 

fast. He didn't have any supporting evidence, he 

didn't have any documentation to determine there 

was any sort of exposure. 

But in the way it's communicated, and 

I don't understand why they would add the fact 

that during this time, his exposures would not 

have exceeded existing regulatory standards. 

There is no basis for that. What he 

can say is he wasn't provided any evidence. In 

his professional opinion, he can provide the 

causation or the potential and several other 

things.

But there are statements in there are 
104

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that are not facts and that's what makes it 

wrong. 

CHAIR MARKOWITZ: Thank you. 

Let's move on to 6463. It's Ms. 

Whitten and Dr. Bowman and it's chronic lung 

disease and after that one, we're going to move 

on to Mr. Catlin and Dr. Milkulski for a cancer 

case, 7539. 

So, first we'll do 6463 and then 7539. 

MEMBER WHITTEN: This is Dianne. I 

worked for a clerk for 10 years in Y12 --

COURT REPORTER: I'm sorry to 

interrupt, this is the court reporter. Your mic 

is not coming through clearly. 

MEMBER WHITTEN: I know, I don't know 

why. Can you hear me now?

CHAIR MARKOWITZ: Yes. 

MEMBER WHITTEN: Just let me know if I 

break up again. 

This woman in her 70s, she went in for 

normal worker physical even though she states 

that she's in excellent health. They determined 
105

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that she had COPD so they geared her towards the 

program. 

They filed a claim. IH, because of 

her smoking and her exposure to asbestos, she was 

accepted under COPD. 

CHAIR MARKOWITZ: Are you finished? 

You're not coming entirely through. 

MEMBER WHITTEN: I just find it 

remarkable that this IH took into consideration 

her smoking and her possible low-level asbestos 

exposure would have caused her COPD. The other 

claims where there are the same circumstances and 

they're denied. 

CHAIR MARKOWITZ: This was an accepted 

claim?

MEMBER WHITTEN: Yes, this was an 

accepted claim. 

CHAIR MARKOWITZ: Dr. Bowman?

MEMBER BOWMAN: Yes, I can add a bit 

to that, am I coming through clearly? 

CHAIR MARKOWITZ: Yes. 

MEMBER BOWMAN: I'll just confirm this 
106

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

was an accepted claim for chronic lung disease. I 

find it very interesting looking through this. 

The criteria we're given in the 

decision letter, there's one criteria that was 

not met which relates to latency, in which the 

diagnosis should be made at least 20 years after 

the initial exposure during the covered 

employment. 

It was noted that because it didn't 

meet this criteria, additional development was 

undertaken to determine if there was scientific 

merit to a link between the accepted diagnosis of 

COPD, there's no doubt about that diagnosis, and 

potential exposure to toxic substances. 

They use the appropriate next-steps, 

the SCM was consulted, the IH was consulted, CMC 

was consulted. SCM failed to provide a link 

between the position of this individual, the 

current position, and the location of the 

position and toxic substances to COPD. 

Despite that, the IH opined that there 

was likely exposure and ranged from very low to 
107

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

low levels. 

The CMC's review then took into

account the low-level tobacco use as well as the 

low-level asbestos exposure and opined that it 

was at least as likely as not that it was caused. 

So, despite the fact that there are 

some evidence against what would be considered 

for acceptance, the cumulative evidence here was 

weighted with both the IH, despite the very low 

levels and the CMC saying that there is 

reasonable evidence that it could have 

contributed substantially to the chronic lung 

disease, that the overall decision was to accept.

When I was reading through this at 

first, I thought for sure it would be denied 

despite the criteria. 

So, it seemed to me in this case 

different than many of the cases of IH we've been 

talking about today and yesterday where, despite 

statements of very low to low exposures and 

uncertainty and the SCM not coming through, the 

CMC in this case appears to have given due 
108

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

consideration to the potential risks of asbestos 

exposure and contribution to the lung disease 

leading to the decision in this particular case. 

CHAIR MARKOWITZ: Interesting, thank 

you. 

Next we're going to do 7539, that's 

Mr. Catlin and Dr. Milkulski, and then after that 

we're going to move to Parkinson's E472, that's 

Dr. Friedman-Jiminez and Dr. Silver.

So, 7539, it's a cancer case, Mr. 

Catlin and Dr. Milkulski. 

MEMBER MIKULSKI: Catlin, do you want 

to start?

MEMBER CATLIN: Why don't you start, 

Dr. Milkulski since there's more medical than 

exposure assessment in this one. 

MEMBER MIKULSKI: This is a breast 

cancer case claim for a 68-year-old female worker 

from Savannah, River Site who worked for a total 

of 13 years is a painter in construction, 

janitor, and photographer.

This claim was processed under 
109

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Subtitle B with a probability of causation of 

17.95 percent subsequently denied and submitted 

subsequently due to the morphological picture of 

the breast cancer.

It's very similar to salivary gland 

cancer, that's a salivary gland cancer claim. 

This was also denied. 

The benefit of the worker, the breast 

cancer claim was eventually reopened given the 

new specific exposure for designation at Savannah 

River Site that included the years and the job 

that the worker worked onsite. 

In general, I do not have any issues 

with this claim. This was processed before the 

Board's recommendation to include the IR Class 2A 

chemicals in the SEM. 

So, upon the search for exposures 

related to breast cancer, that provided no input. 

Other than that, like I said, this is a reopened 

claim that will be processed hopefully soon. 

This is the last few months. 

CHAIR MARKOWITZ: Okay. Mr. Catlin?
110

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER CATLIN: Thank you, Dr. 

Milkulski for that. I think that really was the 

case. The part I found maybe of interest to our 

board was that the SEM review found no link to 

breast cancer and any chemical exposures.

I just know that certainly the history 

of painting and exposure the claimant had in the 

past back in the 1970s to mid 1980s, and the IR 

designation is painting is a carcinogenic trait 

back in 1989.

And certainly there seems to be 

growing evidence that there seems to be some 

links between some of these exposures and 

painting. But that just shut down the whole 

investigation in this case.

So, I'm not sure how we addressed 

that. It seemed the process would allow for some 

investigation. Even though the SEM didn't 

identify any problems, the scope could have been 

looked at. 

So, it might be something we discuss 

how to handle some of these cases where the SEM 
111

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

might not be up to date. 

CHAIR MARKOWITZ: Other comments? 

Next we have 8472, it's a Parkinson's Disease 

case with Dr. Silver and Dr. Friedman-Jiminez.

MEMBER SILVER: George, are you okay 

starting the ball rolling?

MEMBER FRIEDMAN-JIMENEZ: Sure, I can 

cut to the chase on this and if I miss anything 

I'm sure you can fill it in. 

This is a 78-year-old man who worked 

as a maintenance machinist, mechanical 

technician, plant maintenance technician, an 

assembly machinist from 1974 to 1978.

And as a tech liaison specialist 

mechanical technician from 1978 to 1993 at Los 

Alamos and Lawrence Berkeley National Labs. He 

was diagnosed with Parkinson's Disease in 2017, 

although he may have had symptoms several years 

before that, before the diagnosis.

The claim was denied based on judgment 

by the CMC of too-long a latency period for 

stainless steel and carbon steel, and the 
112

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

judgment by the toxicologist that the literature 

in 2018 did not support a causal relationship 

between trichloroethylene, which I'll call TCE 

exposure, and Parkinson's Disease. 

So, the IH report and the CMC report 

maybe as a result of the toxicology report did 

not discuss TCE exposure. And I think I disagree 

with the denial, although I think it needs to be 

reconsidered. 

I may have missed something but it 

seems to illustrate a problem in the way the 

system is set up. And I'll try and lay it out in 

a way that may be discussable and actionable. 

But it seems to me that the question 

to the CMC, which was framed by the claims 

examiner, was based on the IH and toxicologist's 

focus on bronze, stainless steel, and carbon 

steel, and the toxicologist's judgment that TCE 

was not causally related to Parkinson's in the 

literature.

The way that question was framed I 

think may have misled the CMC evaluation. 
113

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

In spite of the statement that was 

submitted by the claimant and a letter from the 

treating physician stating that TCE had been 

linked to Parkinson's Disease, citing a well done 

study from 2012 six years before the claim was 

evaluated, somehow the industrial hygienist and 

the CMC and the toxicologist and the Department 

of Labor all focused incorrectly on carbon steel 

and stainless steel without investigating 

manganese content of the steel, which was 

something that I thought was completely ignored 

that should have been discussed. 

And they failed to identify TCE as a 

likely causal agent. So, I think the problem 

here is the focus seems to have been driven by a 

too-narrow question that was framed by the claims 

examiner that did not include TCE in the initial 

evaluation. 

The CMC who was an M.D.-Ph.D.-

neurologist would likely have been aware of the 

study which was done by Samuel Goldman and was a 

twin study. 
114

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

It was a well done study criticized by 

Chekaway for being too small but Chekaway didn't 

give any cogent real criticism of it. 

And the study by Goldman actually 

recorded an odds ratio of 6 and a lower than 95 

percent confidence interval of 1.2 for the 

association between TCE and Parkinson's Disease. 

And the lower confidence interval was 

reasonably far from the middle value of 1 so that 

really doesn't support Chekaway's criticism of 

the study that the study was too small. 

Chekaway didn't have any other 

criticism. It seems to me as an epidemiologist 

that it's unlikely with an odds ratio of 6 that 

confounding by other causes of Parkinson's 

Disease would have explained the entire 

association.

And the small sample size again is not 

really a problem since the confidence interval 

clearly excludes one. 

I think there was more discussion 

really needed on why this study was dismissed and 
115

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

why it was not considered important by the 

toxicologist who pretty cavalierly dismissed TCE 

as a possible cause of Parkinson's. 

So, the problem here I think is this 

oversight that the too-narrow question that was 

framed by the claims examiner, who either was 

unaware of the TCE exposure, that TCE exposure 

was demonstrated in a decent study to be strongly 

associated with Parkinson's Disease, or for some 

other reason excluded TCE.

I think that problem illustrates an 

issue that we should discuss, which is how is the 

initial question framed? 

Who frames it? The claims examiner 

doesn't likely have either the training or the 

time to keep up with the literature on all of 

these possible associations.

And I think, frankly, in some ways it 

doesn't have the knowledge to really be the 

ultimate person that frames this question. How 

the question is stated is quite important to the 

case. 
116

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

In this case, it led to the denial and 

I believe that it may well have been supported 

and the case approved if TCE had been admitted as 

a possible cause of Parkinson's and the CMC would 

then have had to deal with TCE as a possibility, 

which it did not. 

CHAIR MARKOWITZ: I'm going to just 

ask a question. The Department accepted our 

recommendation on having TCE as linked to 

Parkinson's in the SEM in August 2020. 

Was this case decided before August 

2020?

MEMBER FRIEDMAN-JIMENEZ: Yes, it 

was, then it was not in the SEM at the time the 

CE framed the question, however, the treating 

physician cited the Goldman study in her letter 

and the toxicologist cited the Chekaway paper, 

which was a review and had included the Goldman 

paper, and didn't comment on the Goldman paper.

The Goldman paper was an important

piece of evidence here that was not discussed and 

there were several reasons why it should have 
117

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

been discussed. It had been brought up by two 

different people.

So, I think the fact that it was not 

in the SEM does contribute but it's really a 

question of how is the SEM updated and how are 

the claims examiner and CMC trained in terms of 

keeping up to date with the literature. 

The study came out in 2012 and it 

seems to me that an M.D.-Ph.D.-neurologist who is 

a consultant on this case of Parkinson's Disease

should have seen this and should have questioned 

why is TCE not being considered here?

But they didn't. So, that's the 

question I'm raising, how is the question framed 

and should we discuss other possible ways of 

approaching this?

MEMBER MIKULSKI: George, Steve, this

is Marek. 

You had a very similar experience from 

reviewing this claim as me looking at a couple 

more Parkinson's claims, one with incurment 

rating, both with different outcomes.
118

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Yes, the Goldman study was the core of 

our recommendation for presuming the causality of 

trichloroethylene and the recommendation that the 

Board issued specifically called for including 

these as presumptions of causation.

Now, in the response that we have 

received, DOL called solely on including these as 

health links, as exposures related and associated 

with Parkinson's as in SEM.

So, I think another issue that begs 

the question is how does actually SEM, how do the 

SEM exposure health effect links translate to the 

presumptions of causation that are included in 

the procedure manual?

MEMBER SILVER: That's an excellent 

point. Can I add just a couple of things?

CHAIR MARKOWITZ: Sure.

MEMBER SILVER: There was muddiness 

about his job title and his tasks from the minute 

he walked into the resource center, and he did 

the OHQ. 

He said he worked at the Meson 
119

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

facility, someone knowledgeable at the site would 

have known that the Los Alamos Meson, M-E-S-O-N, 

Physics Facility, the linear accelerator, 2600 

feet long.

But it was spelled M-A-S-O-N and the 

picture was laid down that he built accelerators. 

In fact, people in his job category of 

electromechanical technician were assigned to 

clean miles and miles of bean line for the 

accelerator with trichloroethylene.

An excellent description is in the 

claim file of Ben Ortiz, who I've mentioned many 

times, who developed solvent cephalopathy. The 

final decision came through with an excerpt from 

the SEM for, quote, unquote, maintenance 

technician at Lawrence Berkeley for two years.

But in fact, his job title was 

maintenance machinist. Maintenance technician at 

Lawrence Berkeley has zero exposures, maintenance 

machinist has a long, long list of exposures.

And when I checked it Sunday night, 

there was a direct disease linkage for manganese 
120

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

in his very building, Building 77. So, this

claim was decided in 2018.

After the report, the SEM has been 

updated but too late for him unless the program 

leadership takes a look at it. 

Also in his claim files was a hazard 

inventory provided by Lawrence Berkeley 

management in the 1980s as they were preparing 

for CARA compliance, which listed additional 

exposures that still aren't in the SEM in his 

building including carbon monoxide as the welding 

byproduct, which DOL recognizes as the causal 

contributing factor for Parkinson's Disease. 

So, it was kind of shooting fish in a 

barrel on the job title exposure site of this 

claim. I really would like them to take another 

look. And Monel stainless steel contains up to 

two percent manganese. 

MEMBER CATLIN: This is Mark Catlin, 

can you all clarify, the TCE report from 2012 was 

provided by the claimant's physician in that 

regard? Is that the case?
121

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER FRIEDMAN-JIMENEZ: The Goldman 

study was published in 2012 and was cited by the 

treating physician in her letter supporting the 

claim for Parkinson's Disease and TCE exposure, 

however, TCE was not considered formally in the 

evaluation. 

MEMBER CATLIN: I appreciate that. 

I guess what I'm hearing again here in 

this case, and I've heard a couple others, where 

claimants are encouraged to provide additional

information to help with the case but it seems 

that often, that information is either ignored or 

not addressed. 

If they're going to ignore this, then 

there should be some place in the CMC or some 

report that says here's why we're not considering 

this. 

And I think we heard earlier that 

there were coworker testimonies that were 

provided that were ignored in another case. 

So, this seemed to be a really 

important core feature of this claims management 
122

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that if there is information provided, it should 

be at least acknowledged and then dealt with, 

plus or minus, so that then there's a chance to 

review that.

In these cases, they seem to just 

disappear. 

MEMBER SILVER: My impression is that 

the very concerned primary care doctor of aboveaverage competence searched PubMed and the 

Goldman Study was one of three or four abstracts 

provided. 

But the opinion didn't really rise to 

the level that we've seen in some other cases 

where the worker was lucky enough to have a 

specialist in occupational medicine write a more 

detailed opinion letter.

They should still honor what the 

primary care doctor came up with but that could 

be the difference. 

CHAIR MARKOWITZ: Let's do one final 

case, also Parkinson's Disease, it's 7904, it's 

got Duronda Pope and Mark Catlin's name on it. 
123

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

They're the reviewers. 7904, also Parkinson's 

Disease.

MEMBER CATLIN: And my apologies, I 

actually was not able to review that. By the 

time I was able to get to the disk and it was 

corrupted, I have not been able to look at that. 

My apologies.

If Duronda wants to give her opinion, 

I'd be really interested to hear it. 

MEMBER POPE: Thank you, Mr. Catlin, 

for that. I'm sorry that you weren't able to 

look at that. After reviewing this, this is an 

accepted case. 

This claimant was a security guard and 

the claim, like I said, was accepted but here we 

go with this language of identifying that 

yielding and saying that it is highly likely that 

the lead exposure of occupational exposure was 

high-level range. 

But I don't think I really had any 

problem with this case other than just looking at 

the fact that he was a security guard and the 
124

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

security guards at my plant went everywhere.

So, they were potentially exposed to a 

lot of things but this particular claim did have 

support in regard to supporting documents that 

helped develop the case and was able to be 

accepted. 

So, I didn't have any problems with 

that so I just wanted to reiterate the fact that 

having this assumption from some of the IH and 

the CMCs and also the CEs of that job category as 

an RCT, as a security guard, their potential for 

exposure is really high. 

CHAIR MARKOWITZ: We have time for one 

more case so let's bring back Mr. Silver and Mr. 

Tebay for cancer case 7855. It's 7855. Mr. 

Silver and Mr. Tebay?

MEMBER TEBAY: Dr. Silver, you go 

first. I'm punting.

MEMBER SILVER: I'm skimming really 

fast.

CHAIR MARKOWITZ: 1000 pages, good 

luck with that. 
125

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER SILVER: No, my notes, just 

turbo-charge my memory with his job title and 

location. Oak Ridge was mostly discussed as a 

clerk throughout this claim file. 

He had prostate cancer, asthma, and 

squamous cell carcinoma of the ear. He got a 

very low probability of causation for the 

prostate cancer from NIOSH, less than 2 percent 

if I remember correctly. 

The asthma is not our main focus. He 

had job tasks described on the Atomic Trades 

Labor Council Worker Screening Program 

questionnaire that were a lot dirtier than just 

being a records clerk. 

He was an assembly auditor and 

described being in a particular building, 9212, 

with highly enriched uranium operations when 

components were being taken apart and maintained.

And his cancer claim was denied but 

when I looked at the latest SEM for that building 

location, mineral oil is one of the potential 

exposures in the very building location.
126

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

And mineral oil is a recognized cause 

of skin cancer. So, I don't know when that 

update occurred. He would have to peal, I think, 

argue that he wasn't just a records clerk, that 

he was involved in quality assurance.

And that job title at that location

produces an exposure to mineral oil which was 

missed. And on his EE1 he said he was exposed to 

a lot of chemicals. 

CHAIR MARKOWITZ: Mr. Tebay?

MEMBER TEBAY: I'm good with that. I 

also see there seem to be several places where I 

think the CMC, the claims examiner, and maybe the 

diagnosis physician kind of did not agree that 

there was a clear diagnosis. 

Does that make sense? 

MEMBER SILVER: I think that was the 

case for the asthma. 

MEMBER TEBAY: I agree with everything 

Dr. Silver said. 

MEMBER SILVER: You're saying it's 

kind of hard to be ambiguous about a diagnosis of 
127

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

cancer? 

MEMBER TEBAY: Yes. 

MEMBER SILVER: But he lost his low 

radiation dose on prostate and I think maybe he 

was a victim of an outdated SEM.

MEMBER TEBAY: I think that's probably 

true and there was also more IH language in there 

that creates confusion. 

CHAIR MARKOWITZ: Other comments? 

Thank you. 

We've completed I think 19 or 20 out 

of the 24 claims, so that's pretty good. We're 

going to move now to the next agenda item which 

is being brought up by Mr. Tebay, which is the 

issue of beryllium sensitivity. 

And maybe, Mr. Tebay, you should just 

introduce the topic. 

After you do that, I do want to go 

back to 2017 when the Board tried to take on this 

issue and what we requested and what the response 

was, but we can do that after you raised the 

issue. 
128

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER TEBAY: You can do that now, it 

doesn't matter to me. 

CHAIR MARKOWITZ: Kevin, do you want 

to bring up that? This problem with the 

borderlines, beryllium at the site for expiration 

testing, has been around for a while, and it's 

been studied multiple times. 

No, not that one, the other one that I 

sent you.

MR. BIRD: The one you sent me most 

recently?

CHAIR MARKOWITZ: No, not the most 

recent, that's a three-lined one. 

MS. RHOADS: Should be the one that I 

sent you this morning, Kevin.

CHAIR MARKOWITZ: So, let me begin to 

talk about it. What we're going to be seeing is 

the Recommendation No. 6 from the Board, I think 

2017.

And we recommended that the finding of 

two borderline beryllium sensitivities in the 

proliferations test should be considered -- There 
129

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

we go. Okay. -- considered the equivalent of one 

times the BeLPT for the purpose of claimants' 

adjudication under Subpart D and EEOICPA.

In other words, if a person has a 

positive, has two positives, two borderline 

BeLPT, that would be the same as having one 

positive BeLPT. And the program would recognize 

it as, as having sensitivities eligible for 

compensation and treatment.

And the response from the program was 

that they did not support this change. And 

reading from the first line of their response: 

"This recommendation is inconsistent with the 

explicit statutory requirement that beryllium 

sensitivity is 'established by an abnormal BeLPT' 

performed on either blood or lung live cells."

And what they end the paragraph by 

saying is that the program is "bound by specific, 

clear, and unambiguous language of the governing 

statute."

So, that's the, that's the problem we 

ran into before. So, and apparently it continues 
130

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

to be a problem. And the program, as I recall, 

the program was unsympathetic to both the issue 

and the Board's recommendation.

It's just that there, that the plain 

text of the statute ties their hands into saying 

it needed a positive, an abnormal beryllium 

lymphocyte proliferation test.

So, where do we go from here?

MEMBER TEBAY: So, can somebody explain 

to me, Mr. Vance, somebody, explain to me what 

that means? I mean, I guess the governing 

statute doesn't allow change to that depth of 

sensitization?

MR. VANCE: Yeah, this is John.

So, yeah, I mean, if you're looking at 

that, that was actually, you know, that's a 

legislative language that you'll see right there 

in front of you. And so, the program has no sway 

in changing legal standards that exist.

And so, when Congress passed this and 

it was signed into law, this is the language that 

exists. And so, the program is administratively 
131

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

bound to ensure that claims satisfy the standard 

which specifically says that you need to presume 

an abnormal BeLPT.

Now, you know, I agree that that might 

not be the most appropriate standard to apply 

now. But that is neither here nor there. That's 

the language that exists in the legislation and 

that's what the program's legally responsible for 

applying in case adjudication.

And so this, this language exists in 

the statute. This is the language the program 

has to apply. So, it has to be an abnormal test 

result.

We have no say in this. And the only 

time or the only option that you would have would 

be to have the United States Congress pass an 

alternative law that provides for a different 

standard.

MEMBER TEBAY: So, I understand that. 

But I'm a little puzzled because obviously this 

law was passed, and several of the others for the 

rest of the procedures. If the criteria changes 
132

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

and evolves, the technology and medical 

advancement, how do we live with this? What do 

we do about that is my question?

I keep hearing we can't do anything 

about it. But we also can't be expected to live 

to a standard that's outdated.

MR. VANCE: Well, my response to that 

would be, unfortunately we live to that standard 

until the United States Congress decides to 

change the standard.

And that's, I mean, it's not that I'm 

sympathetic to every individual who was on the 

public comments talking about this yesterday. I 

agree that this could be something to be looked 

at. But the program's bound by the statutory 

language.

MEMBER TEBAY: So, --

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez. I have a comment on 

this.

This is not the first time that we see 

legislation equate a test result with a 
133

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

diagnosis. And, in essence, this is a problem of 

legislators practicing medicine without a 

license.

We have in medicine -- and I've taught 

diagnostic testing to 3,000 NYU medical students 

over 20 years. This is one of my areas of 

expertise. Test results are not absolute. All 

diagnoses are probabilistic in medicine. And it 

requires a clinician to make a decision, a 

judgment usually, on whether the diagnosis holds 

or not based on all available evidence, which 

includes physical exam, diagnostic test results, 

imaging, and other things.

And in this case the positive test 

result is equated with berylliosis, or chronic 

beryllium disease, or beryllium sensitization. 

That's really a clinical judgment.

And I really feel strongly that this 

is out of place. You know, I know we can't 

change the law, but this is really out of place 

that the legislators are trying to make a 

diagnosis based on a test result without the 
134

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

clinical considerations that are required in 

every patient, with every diagnosis.

CHAIR MARKOWITZ: So, you know, just to 

follow up here, Congress, you know, they 

sometimes pass laws, and they sometimes get the 

details incorrect or incomplete. And I 

understand that they go back, not unusually, they 

go back and they, they make amendments to either 

correct or add to the act in order to make it 

work better.

And so, I have a little bit of an outof-the-box idea, Kevin, that you could bring up a 

draft recommendation, which is that the Board 

recommends to the Department that they consider -

- you can make it larger -- and that they 

consider asking Congress to make a technical 

amendment of the act, recognizing that 

individuals who have or have had exposure to 

beryllium while working at DOE, and who have 

multiple borderline BeLPT tests, that they have 

beryllium sensitivity.

So, it's very focused on a particular 
135

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

erroneous or outdated notion about what 

constitutes beryllium sensitivity. It wouldn't 

require, won't require an act of Congress so to 

speak, or actually. But, in fact, it's very 

limited language that they do not now.

I don't know, Mr. Vance, whether the 

Board is stepping out of its role here. But on 

the other hand, it's a recommendation that 

highlights a problem for which there is a pretty 

easy fix. And whether the Department ever 

actually does such a thing, informs, or requests, 

or whatever the proper action vis-a-vis Congress 

is not something I would know about.

But I think this would certainly 

express the Board's interest. And, also, it 

provides a pretty straightforward and highly 

justified answer to the problem.

MEMBER TEBAY: I do have another 

question. And maybe this helps.

But, Mr. Vance, under -- in the 

procedure manual under beryllium sensitivity, 

under evaluation it talks about the borderline. 
136

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

But right below that it says the borderline is 

not sufficient. Below that it says a CE does not 

intend to interpret the findings of the BeLPT or 

the beryllium patch test.

Yet, there's a caveat that says if the 

test is not accompanied by a physician's 

interpretation, the CE obtains the interpretation 

from the physician who performed the test.

So, is that caveat, does that open the 

window that the diagnosing physician can provide 

interpretation that those borderlines equate to 

an abnormal?

MR. VANCE: I mean, I, my response to 

that would be, you know, we would have to look at 

the specific information submitted. But it would 

have to be, you know, interpreted or evaluated as 

an abnormal test result because that's what the 

statute would require.

MEMBER TEBAY: Okay.

MR. VANCE: So, so that's the answer 

I'm going to give it. It would have to meet that 

statutory requirement that it's going, that's it 
137

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

evaluated as an abnormal BeLPT test result.

MR. CHANCE: Steven, if I may, to your 

point about traditionally the role of the 

executive branch is not to lobby Congress. So, I 

don't know that the Department -- I think you 

might be getting a little out of, out of your 

role here.

You know, if this is something you 

want to do, and like John says, you want the 

statute amended, there might be other ways you 

could go about doing that. Because, like, I'm 

not sure that the Department would be able to 

lobby Congress.

MEMBER TEBAY: Yeah, obviously not my 

area of experience.

MR. CHANCE: Yes.

MEMBER TEBAY: I didn't know whether 

there was some mechanism whereby the executive 

branch could provide some feedback about the 

difficulty or challenge in executing a law for 

which, you know, for which there was some 

specific, frankly, incorrect --
138

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MR. CHANCE: It's a sticky, it's a 

sticky wicket.

And, you know, in my own, you know, in 

my own program we see things that we wish we 

could change. But, you know, so, I don't know, I 

think that there might be other ways that you 

might be able to go about bringing this to their 

attention. And there are members that are, that 

are interested in the programs.

MEMBER TEBAY: Right, right. So --

MEMBER CATLIN: Pardon me. Steven, I 

just wondered if would it be within our bounds as 

a board to just make the general recommendation 

that Congress -- not ask the Department to do it, 

but just a general recommendation that Congress 

should make this technical amendment to it?

MR. CHANCE: Yeah, I think you could 

make any recommendation you deemed necessary. 

I'm just trying to say that the Department 

probably wouldn't be able to do anything with it. 

But that could at least get the issue out there.

MR. VANCE: Yeah. This is John.
139

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

I agree. I would agree with Mike. 

But I also see Dr. Markowitz' position that a 

formal recommendation of the Board does raise the 

profile of an issue that has come before the 

Board, even if the Department of Labor may not be 

in a position to do much about it.

MR. CHANCE: Right.

MR. VANCE: So, I don't know if that 

makes sense.

MR. CHANCE: I think that's a 

legitimate point, John. I think that, you know, 

that you could raise it. I'm just trying to, I'm 

just trying to dampen any kind of enthusiasm that 

the Department would be able to go do anything 

with it.

But it would, you know, maybe raise 

the profile of the issue.

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez. One more comment.

Another way to approach this would be 

to put together a peer-reviewed paper reviewing 

the diagnostic test, and making the 
140

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

recommendation to the test company that they 

modify their interpretation of the test so that 

two borderline tests are equivalent to a positive 

test. And that way it wouldn't require an act of 

Congress, but it would require a redefinition of 

an abnormal test by the company that, that does 

the test.

But it could be done. I think the 

evidence is probably sufficient to make that 

argument successfully.

MEMBER TEBAY: Well, can we review the 

letter from National Jewish, Dr. Markowitz?

CHAIR MARKOWITZ: Sure. And let me, 

while we're pulling that up, let me say that, 

George, that would be a very interesting question 

for National Jewish, since they do a huge volume 

of beryllium LPT testing.

Now, whether they could be comfortable 

with reporting out multiple beryllium -- multiple 

borderline tests as subset, abnormal subset that 

would meet the current statute.

MEMBER SILVER: Before we go to the 
141

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

peer-reviewed paper route, I have a crystal clear 

memory from early 2001. President Clinton signed 

the original act in October of 2000. And the 

Office of Workers' Compensation Programs, in the 

person of Shelby Hallmark, brought to Senator 

Jeff Bingaman's attention -- he was the lead 

sponsor, from New Mexico -- a couple of technical 

glitches.

One was that the act didn't define 

marriage in a way that was consistent with the 

other laws that OWCP administers: black Lung,

FECA. So, they worked together on a small set of 

technical amendments.

The reason I remember that is that one 

of the widows who campaigned hard for the law had 

only been married 11 months. And when the 

technical amendments went through, with very 

little public involvement, she was out.

So, there is a history of, you know, 

this part of the Department of Labor -- Pete 

Tursic was at the meeting. I called in as a 

stakeholder on the phone call. -- to tweaking 
142

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

laws with technical amendments recommended by the 

agency.

CHAIR MARKOWITZ: Yeah. So, Kevin, can 

you pull up the letter from Jewish?

MR. BIRD: Let me know if this is the 

letter you're looking for because it's listed as 

the one.

CHAIR MARKOWITZ: No. There, see, it 

actually has an --

MS. RHOADS: It should be -- it's one 

of the separate attachments, I think, on the 

website, like, below this.

MR. BIRD: Yeah. So, this one?

MS. RHOADS: There you go.

CHAIR MARKOWITZ: Yes.

MR. BIRD: Okay.

MEMBER TEBAY: So, this was submitted 

to, well, with our response. I kind of lobbied 

this out of National Jewish. But this is 

somewhat of what Dr. Friedman-Jimenez has already 

referred to. This is their opinion.

I think we have -- maybe it's not 
143

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

detailed enough -- but I think we already have 

that. If we scroll down, you can read that 

National Jewish in their opinion is it needs 

multiple borderline equate to beryllium 

sensitization. Signed by Dr. Meyer and by Dr. 

Mayer.

I think we skipped right to the back 

page. But on the front page the first article 

pretty much, or the first paragraph pretty much 

thought, you know, and that one does as well.

CHAIR MARKOWITZ: So, they could be 

asked whether they could legitimately, when there 

are two or three borderline results, whether they 

could report that out as abnormal. You know, not 

--

MEMBER TEBAY: Individual, what you're 

saying, for each individual person who's 

diagnosed.

CHAIR MARKOWITZ: Yeah. I mean, not, 

we're not exploring perception here. We're not 

asking them to accede for the purposes of 

compensation. It's a question of what the 
144

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

nomenclature is.

If they believe that BeLPT borderline 

results is the same as abnormal, are they 

comfortable with changing the nomenclature?

MEMBER TEBAY: Yes.

CHAIR MARKOWITZ: I think that's what, 

I think that's what Dr. Friedman-Jimenez is 

raising.

MEMBER TEBAY: Yes. And I think that 

this was our attempt at that. Right? This is 

the attempt to do that. Although I think that's 

a temporary fix until the -- until the procedure 

itself or -- can be changed. Right? I mean, 

until it's in line with the procedure.

And I don't, for the rest of the Board 

-- and anybody jump in and ask me any questions 

at any time -- we've been working on this since 

2010. The DOE had a brilliant corrective action 

plan that went out and lobbied and asked for 

assistance from every major beryllium vendor, 

beryllium clinic, you know, certain specialists 

in their area in beryllium. We created a 
145

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

simplified algorithm for testing.

And these borderlines have been 

included.

As soon as, as soon as that was done, 

Washington State L&I created a guideline for 

diagnoses, beryllium-related condition and 

disease, which includes the borderlines. In 

fact, it is at least two abnormal BeLPTs, one 

abnormal and one borderline, or three 

borderlines.

These are all documents that are 

available on the website, and all documents that 

I've provided for today's discussion.

Along with OSHA last year came out 

with a worker information (unintelligible) on 

beryllium. And under what it means, OSHA defined 

any, basically that individuals with either two 

abnormal BeLPT results, an abnormal and a 

borderline test result, or three borderline rest 

results are considered to be confirmed positive 

tests.

There's a pretty consistent criteria 
146

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

between Labor and industry, OSHA, which is a 

federal program, National Jewish, Cleveland 

Clinic's links to this same diagnosis criteria. 

Our onsite medical provider for Department of 

Energy uses the same criteria.

But the program itself, because it's 

kind of crippled by this, you know, law, we've 

left a lot of workers out there in a really, you 

know, difficult spot.

CHAIR MARKOWITZ: Yeah, I don't think 

anybody disagrees with you, actually. It's just 

a question of finding, finding a solution.

I looked back at one of the studies, 

the Middleton study that they, or the previous,

another study by SANGY (phonetic), where they 

looked at 20,000 test results from DOE. And they 

found about 30 of them had three consecutive 

borderlines.

So, just numerically, just so people 

understand, it's not a huge problem. I'm not 

saying it's not important to people and we 

shouldn't get it right. But just in terms of 
147

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

does this open the floodgates of a ton of people 

coming in with beryllium sensitive, the answer is 

no, because multiple borderlines are just not 

that common. They should be handled correctly, 

no question, but just not common.

Of course, if you have it, it is very 

common because you're one out of one.

MEMBER TEBAY: Yeah. Yeah. You know, 

we have -- and I'm not excluding the other DOE 

facility. I have, I have information that was 

brought to me. And I've been to other facilities 

that we, that have the same issues.

But here at Hanford we have a 

significant number of people. And when I say 

"significant," you know, we have several hundred 

people in the beryllium condition or disease. 

And we've seen the borderlines be more common 

than it used to be.

I don't know why that is. But, 

obviously, the workers that are identified a 

beryllium workers are in a surveillance program. 

Once there's a red flag in their testing, they're 
148

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

sent to National Jewish. Then National Jewish 

diagnoses these folks via three borderlines. And 

then the workers get stuck in this weird spot 

where they cannot get continued medical 

surveillance.

Or it may be a continuous effect on 

their occupation as well.

So, I appreciate everybody 

acknowledging this.

I would ask, Mr. Vance, is there a 

potential that the DOL could acknowledge that 

this is an issue for them and that needs to be 

resolved? Would that help as well for Congress, 

Congress to get this fixed?

MR. VANCE: I think that the Department 

of Labor would respond to any kind of formal 

recommendation by the Board. That, I think, is 

(inaudible).

MEMBER TEBAY: Say that again?

MR. VANCE: I think, I think the 

Department would respond to whatever 

recommendation that the Board makes.
149

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER TEBAY: I gotcha.

MR. VANCE: That's as far as I can 

comment on that.

CHAIR MARKOWITZ: Yeah. And just to 

amplify, if I could go back to Mr. Chance's 

comment that even if our recommendation is not 

actionable from the Department, then at least it 

provides some visibility of the issue that some 

individuals, groups, could take to members of 

Congress and raise, raise the issue and say, you 

know, this is what we found at our facility but, 

also, this is why the Board has concerns as well.

MEMBER KEY: So, I have a question 

related to that, Dr. Markowitz.

Is it illegal for any board member to 

lobby Congress on changing any of the criteria or 

making amendments to legislation to correct this 

issue?

Is it a conflict of interest for a 

board member to go to Congress on this issue --

(Simultaneous speaking.)

CHAIR MARKOWITZ: You have to ask the 
150

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

ethics officer from Department of Labor for 

advice on this, a special government employee. 

And there are limits.

MR. CHANCE: Yeah, we would have to 

look into that, Steven. Might be best action is 

it is, that would be something we would --

shouldn't be done.

But, Carrie, you kind of, have you 

looked into this?

MS. RHOADS: It should be -- it's one 

of the separate attachments, I think, on the 

website, like, below this.

MR. BIRD: Yeah. Yeah. Since you have 

to certify that you're not a lobbyist to be 

considered for board members, I'm thinking that 

the ethics people would say no to this.

But, I mean, as a board member, 

definitely not.

So, if you want to -- probably we 

would run that by the ethics people, yes.

CHAIR MARKOWITZ: Well, also, lobbying 

has a specific definition, specific meaning when 
151

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

examined as such. It think educating members of 

Congress about issues is not necessarily 

lobbying.

MEMBER TEBAY: I think we utilize 

beryllium awareness for our BeLPT committee, 

which is obviously not board members, to lobby 

our, you know, Senator Murray and Senator 

Cantwell. We can get the ball rolling.

MEMBER KEY: Well, I can also do the 

same with my singular set of senators from the 

State of Kentucky. It is the Senate Minority 

Leader and, also, the cosigner of the EEOICPA 

legislation.

MEMBER WHITTEN: This is Dianne.

Does this fall under our description 

for duties in our charter?

CHAIR MARKOWITZ: I'm sorry, what 

specifically are you referring to that's falling, 

the idea of communicating with members of 

Congress?

MEMBER WHITTEN: No. It just says 

medical guidance for claims examiners, claims 
152

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

under this program with respect to weighing of 

the medical evidence of claimants.

We report directly to the Secretary of 

Labor. So, we write him a letter and --

CHAIR MARKOWITZ: I'm sorry, are you 

speaking in support of the draft recommendation, 

of that action?

MEMBER WHITTEN: Yes.

CHAIR MARKOWITZ: Okay. Kevin, if you 

could bring that draft recommendation up and we 

can see whether we want to address the language, 

and whether we want a vote on it.

MEMBER WHITTEN: Can I just say that I 

would change the language to just say a beryllium 

sensitivity diagnosis, and not, not support the 

borderline testing there.

CHAIR MARKOWITZ: Is that a Word 

document, Kevin?

MR. BIRD: Yes, it is. Sorry, sorry. 

Yes, it is.

CHAIR MARKOWITZ: Okay. So, Ms. 

Whitten, what do you want, what do you want to 
153

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

change? What words do you want to change?

MEMBER WHITTEN: So, after "working for 

DOE" and "you will have a diagnosis of beryllium 

sensitivity."

CHAIR MARKOWITZ: Okay. Don't, don't 

remove the old language yet, Kevin. You can 

just, you know, put it on the next line. That's 

fine.

So, the problem I think with that 

proposal is that the multiple borderlines doesn't 

get you National Jewish, it doesn't get you a 

diagnosis of beryllium sensitivity. Or does it? 

That should be in the National Jewish letter.

MEMBER WHITTEN: I don't know. I just 

don't think we should put ourselves in a corner 

again with (unintelligible).

CHAIR MARKOWITZ: I'm sorry, I'm 

looking, I'm looking at the letter.

I'm sorry. So, but it's who has had 

exposure to beryllium while working for DOE, and 

has a diagnosis of beryllium sensitivity.

What follows that?
154

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER WHITTEN: Nothing.

CHAIR MARKOWITZ: No, but --

MEMBER GOLDMAN: This is Rose Goldman.

The thing is that the beryllium 

sensitivity is an ingredient for making what is 

the diagnosis of beryllium disease. So, it seems 

to me this is, as George said, this is a test 

result.

And so, what I think it has to say is 

a positive -- we have to see it as a positive 

test result for beryllium sensitivity and, 

therefore, be part of the process for diagnosing 

beryllium disease.

MEMBER TEBAY: Although I will say if 

you go into the diagnosis of, of established 

chronic beryllium disease on or after January 

1st, 1993, Part B, if you go into Section 2 it 

says, "in claims that contain a normal or 

borderline LPT."

So, they are considering the 

borderline LPT -- both are applicable in the 

diagnosis of beryllium disease.
155

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

And I don't want to get into numbers.

National Jewish obviously takes three 

borderlines. There's one abnormal and one 

borderline. I mean, there's other, other 

cocktails of that that make that diagnosis.

But I think we need to be, I think we 

need to fix it at the core.

MEMBER FRIEDMAN-JIMENEZ: This is 

George Friedman-Jimenez.

I agree. And I think that this 

situation is analogous to the situation we have 

seen with work-related asthma where you have 

American Thoracic Society criteria to define 

asthma, but you can't write that into law. It 

needs a physician diagnosis that takes into 

account other factors.

So, I think we should here bring in 

the concept of a physician diagnosis because 

that's really the necessary step between a test 

result and the actual diagnosis of record. So, 

rather than base this decision-making on the test 

result, the raw rest result, it should be based 
156

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

on a physician diagnosis of beryllium sensitivity 

or beryllium disease, which takes into account 

the test results and allows the physician the 

medical leeway to make a clinical judgment as he 

or she sees fit.

MEMBER TEBAY: Well, we have workers 

that have been to National Jewish based on 

borderline test results. And those individuals 

who go to National Jewish, they spend the week 

there, they go through all the testing. They 

come home. They meet with their physician before 

they come home. And they have a diagnosis of 

sensitization.

Obviously, the language incorporates 

using borderline test results.

So, so they then submit that to the 

Department of Labor and they're denied 

immediately.

CHAIR MARKOWITZ: So, maybe since 

there's a spectrum of opinion here on what the 

fix is, maybe what we should do is put it into a 

working group to see if they can come up with 
157

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

proposed language to be reconsidered by this 

Board or the next Board.

MEMBER FRIEDMAN-JIMENEZ: I think we 

can just add "or a physician diagnosis." Similar 

to the way the asthma guideline is written.

CHAIR MARKOWITZ: I agree with that.

MEMBER FRIEDMAN-JIMENEZ: Because I 

can't see that a law can overrule a National 

Jewish diagnosis of beryllium disease. I mean, 

that doesn't make any sense.

CHAIR MARKOWITZ: So, if you want to 

propose new language that we're looking at, then 

you should give Kevin some guidance here.

The thing is, the act has kind of an 

extensive section about beryllium sensitivity, 

disease, pre-'93, post-'93. And I think that if 

we're going to propose some, anything more than 

just a simple definitional change of, you know, a 

positive test, I think we should look at what 

we're recommending in the context of existing 

statutory language and, and the procedure manual, 

to make sure that we get it right.
158

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

I don't think we should just do it 

kind of off the top of our heads.

MEMBER FRIEDMAN-JIMENEZ: I agree. 

It's 4:36 p.m. And we can't do this in the time 

that we have. So, we should do it carefully and 

do it right. I agree.

CHAIR MARKOWITZ: Yes.

MEMBER TEBAY: And I've been through 

this beryllium procedure. I don't remember the 

term "borderline" in the procedure 15 years ago. 

I really don't.

And I was personally working through 

this on my own, and I don't remember the term 

"borderline" being called out in any of the 

diagnoses of sensitization or chronic beryllium 

disease.

And I can't find any bulletins, or 

circulars, or any documentation, you know, when

that would have changed to add the term 

"borderline" to this procedure.

Can somebody?

MR. VANCE: I mean, I know that it's 
159

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

been part of that procedure for quite a while. 

I, I know that it has not been a recent change. 

I'd really have to go back and look.

And I think that, you know, we started 

keeping an inventory of the current edition of 

the procedure manual quite a few years ago. And 

I, you know, we can go back and take a look at 

that, and I can provide Carrie with the outcome 

of that research to find out when that was added.

But I'm fairly certain that it's been 

there for quite a while.

MEMBER TEBAY: But, if there has been 

any change to that language, I don't understand 

that, because if that was not a part of the 

original language, how would it have been added?

MR. VANCE: I don't remember the exact 

context on why that was there. But it would have 

been a very similar circumstance to this, which 

is, you know, how do we look at borderline tests 

potentially being an abnorm -- as being 

interpreted as an abnormal result. And that's 

where you get that procedural exception.
160

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Because what the procedural exception 

is saying is that it, that the existence of 

steroids, steroidal medication is masking a 

abnormal test in some way. But the test itself 

should be interpreted as abnormal.

MEMBER TEBAY: But I, there are certain 

parts of this procedure for chronic beryllium 

disease and sensitization that have been modified 

over the years. Correct?

There's circulars that, that have been 

applied, or there's language that's been applied. 

There's been clarifications made. (Audio 

interference.) -- modification now?

MEMBER FRIEDMAN-JIMENEZ: You're 

cutting in and out.

MR. VANCE: You're cutting in and out, 

Calin.

MEMBER FRIEDMAN-JIMENEZ: I volunteer 

to be on a subcommittee to, to write, work on the 

language of the recommendation.

CHAIR MARKOWITZ: Okay. Other 

volunteers?
161

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

MEMBER WHITTEN: I'll help.

CHAIR MARKOWITZ: Okay. Did I hear Mr. 

Tebay say yes? I thought I heard, think I heard 

him say yes.

(Laughter.)

CHAIR MARKOWITZ: Anybody else?

MEMBER WHITTEN: Dianne will help.

CHAIR MARKOWITZ: Okay. I got you 

down.

Okay. Well, if anybody decides they 

want to join, they can join.

Okay. So, we need to move on. We're 

not going to drop this issue, we're just going to 

explore it further in a working group.

And this, this Board's term ends July 

15th, so if we don't have a product by this time, 

then whatever, wherever that is at will move on 

to the next board's term.

Okay. The last issue is, as you know, 

the nominations. You can self-nominate to 

continue to serve on the Board, be reappointed.

There are some people who are not 
162

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

going, current board members who are not going to 

reapply. I don't want to name them, but I do want 

to thank them for all your work, actually, over 

the last couple of years or, in some instances 

maybe longer, maybe six years. The Board's been 

around for six years.

And I think, in general, we have, we 

have contributed to improving the program and 

raising important issues over the life of this 

Board and previous boards.

But we do have to spend a couple 

minutes thinking about how to hand off our work 

to the next board. And there are two things that 

I have in mind.

I have a list of issues, a simple list 

of issues that are still active or are on, should 

be on the agenda for the future for the Board. 

And I will share that with board members and you 

can add, modify as you like. And I will do that 

in the next two days.

The other list I have is areas of

concern that have come out of our claims review. 
163

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

And I think we spent a fair amount of time 

looking at those claims, and now reviewing the 

claims. And I think that the next board, which 

will have, certainly have some different members, 

should benefit from, from our work.

So, what I intend to do is to draft a 

description of these areas of concern, issues of 

concern, or what have you, however you want to 

phrase it. But I'm not going to get it 

completely right. I'm going to send it to the 

board members for your input, modification.

And, again, I can do that over the 

next week.

But here's my question, is whether --

we have a working group that's going to meet 

around the beryllium language. My question is 

should we try to fit in one short meeting of the 

Board before July 15th, if we can, to refine our 

observations from the review of claims, and 

possibly to provide some additional planning for 

what the board, the next board might do with the 

contractor vis-a-vis claims review?
164

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

So, I would propose, if we can find a 

date, that we meet for a few hours, no more than 

that, on one day to close out these issues. And 

it may not be possible for us to find a day or a 

half day when all the board members can be 

present because we're running again into summer 

schedules. And in that case, as long as we have a 

quorum, then I think we're probably better off 

not meeting at all.

And so I wanted to open the floor for 

people's input.

MEMBER BOWMAN: This is Aaron.

I support that idea. As well as if we 

can make any, if a vote is necessary on the 

language for the beryllium, that would be great 

to do as well before we close down.

CHAIR MARKOWITZ: Good point.

MEMBER FRIEDMAN-JIMENEZ: This is 

George.

I think we can do a lot of this by 

email, like the language. But I think it's very 

useful to have sort of a final sign-out meeting 
165

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

to hand off what we think is most important and 

the highest priorities to the next board.

I agree.

MEMBER CATLIN: Yeah, this is Mark 

Catlin.

Yeah, I also agree. Especially if, if 

our beryllium recommendations should be a formal 

approved recommendation by the Board, we should 

meet by then.

MEMBER GOLDMAN: I agree. Rose 

Goldman.

MEMBER KEY: Jim Key. I agree.

MEMBER POPE: Duronda Pope. I agree.

MEMBER WHITTEN: I agree. This is 

Dianne.

CHAIR MARKOWITZ: Great.

MEMBER MIKULSKI: I agree as well. 

This is Marek. I think that there's going to be 

issues with (Audio interference.) -- finalizing 

and making recommendations for the next round.

CHAIR MARKOWITZ: Carrie Rhoads, what's 

the least number of people we need for a board 
166

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

meeting?

MS. RHOADS: It's supposed to be a 

consensus. Any board has to be by consensus. 

So, I think that means at least a majority. It's 

not clear how much more than the majority you 

need. But a consensus is what it is.

CHAIR MARKOWITZ: Well, we always have 

consensus. We don't stop talking until we have 

consensus.

MEMBER KEY: And, also, those who 

cannot meet at the designated time can assign 

their proxy to another board member.

MS. RHOADS: Yes.

CHAIR MARKOWITZ: But so we need a 

simple majority.

And then we take recommendations, we 

take, we take votes. And the majority, I take it 

the majority of the Board is required -- not the 

-- the majority of 12 members is needed to pass a 

recommendation?

MS. RHOADS: I think so, yes.

CHAIR MARKOWITZ: It's not a majority 
167

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

of the people present at the board meeting?

MS. RHOADS: I think that's right. I 

can ask for an opinion from our FACA counsel, 

though, to make sure.

CHAIR MARKOWITZ: Okay. Another 

question for you, Carrie Rhoads.

MS. RHOADS: Uh-huh.

CHAIR MARKOWITZ: Formally we publish 

six in advance for a board meeting. That brings 

us to June 29. And is it, is it at all possible 

for notice of this short meeting so we have a 

shorter time frame for advance notice, say four 

weeks, five weeks? That just gives us a bigger 

window of time in which to vote -- or meet.

MS. RHOADS: Right. Part of, part of 

what I think the six weeks is departmental 

notice, and part of it is FACA requirements for 

public notice. So, we could possibly shorten the 

DOL period. We can't shorten the FACA period. 

But it might be able, you might be able to get 

DOL approval in less than four weeks, which is 

what they usually require.
168

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

I'd have to --

CHAIR MARKOWITZ: The FACA period is 

two weeks; right?

MS. RHOADS: Fifteen days.

CHAIR MARKOWITZ: Okay. So, what we'll 

need to do is to circulate, circulate some dates, 

which we'll do this week. Please, please respond 

to Carrie's request for good and bad times so 

that we can, we can do it quickly.

Another questions I have is we were 

given some documents recently about the procedure 

of the program that we are not able to discuss 

publicly. And so, we haven't been able to 

discuss it at this meeting.

I do think that a subset of the Board 

-- I've read these documents, it's not very 

complicated and won't require a lot of discussion 

-- but I do think a few, a few of us should 

review them and discuss them briefly to see 

whether there's any content that is relevant to 

the Board.

And I would volunteer to do that along 
169

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

with a few others.

If you'd look, if you'd look at those 

documents you'll see it's not a big deal.

MEMBER CATLIN: I haven't looked.

MEMBER SILVER: I'd be happy to join 

that.

MEMBER CATLIN: Can you give us inkling 

of what they contain, or general subject in it? 

No? All right.

CHAIR MARKOWITZ: Stuff that's relevant 

to the programs.

MEMBER SILVER: I'm happy to 

participate.

CHAIR MARKOWITZ: Okay.

MS. RHOADS: I thought I heard someone 

else say something, but I missed who that was. 

If anyone else?

MEMBER CATLIN: I think it's Mark 

Catlin. I was also willing to join in with 

Steve.

CHAIR MARKOWITZ: Okay, great. If 

anybody changes their mind and wants to join us, 
170

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

that's great. I don't think it will take us much 

more than an hour, so.

MEMBER BOWMAN: This is Aaron Bowman. 

You can put me down as a tentative. But it will 

depend on my availability, which is pretty tight 

over the next couple weeks.

CHAIR MARKOWITZ: Okay, great. Okay.

Okay, thank you. So, we're going to 

schedule another meeting. We're going to have 

two small working groups address two different 

issues.

I'm going to circulate a draft of 

areas of concern and a list of items for a future 

board.

Anything else that's pending that I 

haven't listed?

(No response.)

CHAIR MARKOWITZ: Okay. I don't know 

whether Mr. Chance is still on.

MR. CHANCE: I am, sir.

CHAIR MARKOWITZ: Okay.

MR. CHANCE: I was just lurking in the 
171

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

background.

CHAIR MARKOWITZ: Okay. If any board 

members have any final comments for the meeting, 

I want to thank everybody for participating.

I want to thank the public commenters

and members of the public who are hanging on 

there and listening to us. This isn't the 

easiest way to communicate, but at the moment all 

we have. Hopefully, the next, the first meeting 

of the next board will be in person, or maybe 

hybrid to make it easier for the public who can't 

travel to participate in the meeting.

And, again, for board members, for all 

the board members I want to thank you, but 

especially for board members who are not going to 

continue to nominate themselves to serve I want 

to especially thank you for your work. I've 

enjoyed it. And I think we've done some good 

things.

Mr. Chance?

MR. CHANCE: Okay.

MEMBER POPE: I'd like to make a 
172

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

comment. I'm sorry, Duronda Pope.

CHAIR MARKOWITZ: Go ahead.

MR. CHANCE: Sorry about that.

MEMBER POPE: That's okay.

I also wanted to thank the board 

members that weren't going to re-nominate. Thank 

you for your perspective. I thank you for your 

time.

You have no idea how the impact it has 

made on myself and I'm sure others. I appreciate 

your service.

CHAIR MARKOWITZ: Thank you.

MEMBER SILVER: Steven, I appreciate 

the thanks you've given. I don't need to be 

confidential about it. I'm rotating off. When I 

hear myself talk about things that happened 20 

years ago, I realize that I'm just about out of 

ammo.

But anyone within the sound of my 

voice among the attendees, if you yourself, or 

you have a friend or a rival who is thinking of 

applying, I'm happy to chat with them in advance 
173

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

of them submitting their nomination papers.

MEMBER GOLDMAN: This is Rose Goldman.

I also want to say I'll be rotating 

off. And it's been really quite a privilege to be 

part of this committee. And I'm really so 

impressed with the work that's being done and 

actually having accomplished a few things over 

the last few years.

CHAIR MARKOWITZ: Yeah. I think, you 

know, compensation is hard. Occupational 

compensation is very challenging, as witnessed by 

the gross incompetence of most state-based 

workers compensation systems to address 

occupational disease.

You know, when EEOICPA was passed in 

2000, the first five years, Part D was designed 

to have DOE work with the state workers comp 

systems to facilitate claims review and 

acceptance. That failed dismally because state 

workers compensation don't address occupational 

disease.

And it's to the credit of the 
174

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

Department, and Congress obviously, that this 

program was established and has been very 

successful in providing over $20 billion in 

compensation and in medical care for just a very 

broad set of occupational disease.

So, we, you know, we focused on what 

needs to be improved. I guess that's our job. 

But we also need to recognize that the program, 

through a lot of struggle, through a lot of hard 

work, has been very beneficial to people and is 

an exceptional, and exceptional compensation 

program.

Mr. Chance, have I?

MR. CHANCE: I'm sure that Mr. Vance is 

happy to hear you say that, Steven.

MR. VANCE: I'm very happy to hear 

that. But I will acknowledge, Ken, I'm going to 

miss you. I think you always have a good insight.

And, Rose, thank you very much for all 

your work on the Board.

And I will tell you all that we spent 

a lot of time with these programs thinking about 
175

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

your input, and the comments. And we do work 

really hard. And we have seen -- we work hard to 

try to do what we can for the Board. And I'm 

going to acknowledge that I think that we have 

seen some real good improvements in our process 

based specifically on things that have been 

recommended by the Board.

So, I just want to acknowledge, 

acknowledge that. And thank you to everyone who 

has been part of this.

And, Rose, good luck in your next 

endeavors.

MR. CHANCE: Yes. So, thank you, John.

And, yeah, I can see this from my own 

perspective, I see how hard the program works and 

how, you know, there are tall questions to 

struggle with. And so, it's been an honor for me 

to be involved in the Board work with you guys.

And those of you who are going on to 

other things, good luck.

And please do pass the word. Right, 

Steven? We need to make sure that we get the 
176

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

next board set up. We are also, like I said in 

the beginning of the meeting, interested, the 

Department's very interested in trying to compose 

a board with a diverse background. So, anything 

that can be done to assist us with that, we would 

certainly appreciate it, because you guys do 

important work.

But it's always important when we have 

a group like this to have a lot of different 

ideas, and backgrounds, and thoughts to come out 

to try to tackle these problems, whether, whether 

there's a solution or not.

So, Steven, that's all I've got to 

say. Thank you to everybody.

Do you have anything else, Dr. 

Markowitz?

CHAIR MARKOWITZ: No, I don't.

MR. CHANCE: Okay. All right then.

Well, then the meeting is now 

adjourned. Thank you, everybody. And have a 

great afternoon.

(Whereupon, at 4:57 p.m., the meeting 
177

NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS

1716 14th STREET, N.W., SUITE 200

(202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com

was adjourned.)