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UNITED STATES DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES

AND WORKER HEALTH

+ + + + +

MEETING

+ + + + +

THURSDAY,

NOVEMBER 16, 2017

+ + + + +

The Advisory Board met at The Lodge 

at Santa Fe, 750 N. St. Francis Dr., Santa Fe, 

New Mexico, at 8:30 a.m. Mountain Time, Steven 

Markowitz, Chair, presiding.

MEMBERS

SCIENTIFIC COMMUNITY:

JOHN M. DEMENT

MARK GRIFFON

KENNETH Z. SILVER

GEORGE FRIEDMAN-JIMENEZ

LESLIE I. BODEN

MEDICAL COMMUNITY:

STEVEN MARKOWITZ, Chair

LAURA S. WELCH

ROSEMARY K. SOKAS

CARRIE A. REDLICH

VICTORIA A. CASSANO
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CLAIMANT COMMUNITY:

DURONDA M. POPE

KIRK D. DOMINA

GARRY M. WHITLEY

JAMES H. TURNER

FAYE VLIEGER

DESIGNATED FEDERAL OFFICIAL:

DOUG FITZGERALD
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CONTENTS

Welcome and Introductions ..................... 4

Review of Meeting Agenda ..................... 14

Transition to New Advisory Board ............. 16

DOL Responses to Board Recommendations, ...... 21

October 2016 and April 2017

Public Comments ............................. 343

Adjourn ..................................... 431
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1 P-R-O-C-E-E-D-I-N-G-S

2 (8:33 a.m.)

3 MR. FITZGERALD: Good morning, 

4 everyone. My name is Doug Fitzgerald, and I'd 

5 like to welcome to today's Advisory Board on

6 Toxic Substances and Worker Health meeting. 

7 I'm the Board's Designated Federal Officer, or 

8 DFO, for the meeting. 

9 Before we begin the meeting, I'd 

10 like to cover some general housekeeping items, 

11 make sure everyone's safe and comfortable 

12 throughout the next day and a half. First, I'd 

13 just like to mention that the restrooms are 

14 directly outside of the doors to your right --

15 or to your left, actually. And in the unlikely 

16 event of an emergency, please go through the 

17 same doors that are marked with an exit sign 

18 and proceed cautiously down the stairs and out 

19 of the hotel. We certainly hope that's not 

20 going to be necessary for today's meeting.

21 On behalf of the Department of 

22 Labor, I would like to express my appreciation 
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1 for the diligent work of our Board members over 

2 the past several months in preparing for these 

3 public meetings and for their forthcoming 

4 deliberations.

5 I also want to thank several 

6 individuals for their efforts in preparing for 

7 today's meeting, in particular Carrie Rhoads, 

8 our committee staff and alternate DFO who makes 

9 my job so much easier. Kevin Bird and Melissa 

10 Schroeder are side contract staff who always do 

11 a fantastic job setting up these rooms, 

12 arranging for everyone's travel, and preparing 

13 briefing books and setting up our virtual 

14 conference meetings.

15 Before we get started, I also just 

16 want to go over a few of the responsibilities 

17 of the DFO in terms of its relationship with an 

18 advisory board. As the DFO, I serve as the 

19 liaison to the Board and the Department. I'm 

20 also responsible for ensuring all provisions of 

21 the Federal Advisory Committee Act, or the 

22 FACA, are met regarding operations of the 
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1 Board.

2 I work closely with the Board's 

3 Chair, Dr. Stephen Markowitz, and I'm 

4 responsible for approving the meeting agenda 

5 and for opening and adjourning meetings. I 

6 also work with the appropriate Agency officials 

7 to ensure that all relevant ethics regulations 

8 are satisfied.

9 We have a full agenda for the next 

10 day and half, and you should note that the 

11 agenda times are approximate. So, as hard as 

12 we may try, we may not always keep to those 

13 exact timeframes. Copies of all meeting 

14 materials and public comments are or will be 

15 available on the Board's website under the 

16 heading "Meetings." The Board's website can be 

17 found at 

18 DOL.gov/OWCP/energy/regs/compliance/advisoryboa

19 rd.htm. Or you can simply Google "Advisory 

20 Board on Toxic Substances and Worker Health" 

21 and it will likely be the first one that comes 

22 up.
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1 If you haven't already visited the 

2 Board's website, I strongly encourage you to do 

3 so. After clicking on today's meeting date, 

4 you'll see a page dedicated entirely to this 

5 meeting. The page contains all materials 

6 submitted to us in advance of the meeting, and 

7 we will publish any materials that are provided 

8 by our presenters throughout the next day and a 

9 half.

10 There you can also find today's 

11 agenda, as well as instructions for 

12 participating remotely in both the meeting and 

13 the public comment period at the end of today. 

14 If you are participating remotely, I do want to 

15 point out that the telephone numbers in the 

16 links for WebEx sessions are different for each 

17 day, so please make sure you read the 

18 instructions carefully.

19 If you're joining by WebEx, please 

20 note that the session is for viewing only and 

21 will not be interactive. The phones will also 

22 be muted until the public comment period opens 
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1 at 4:30 today.

2 And I just want to say, if there are 

3 people in the room today that would like to 

4 participate in public comment period and have 

5 not already kind of checked in with us to let 

6 us know that, please see Carrie Rhoads at the 

7 desk over to your right and let her know so we 

8 can make sure everyone has the appropriate 

9 amount of time to speak.

10 For those of you listening in on the 

11 WebEx, you can email your request to 

12 energyadvisoryboard@dol.gov and make that 

13 request.

14 At the time of the public comment 

15 period, there will be a different phone number 

16 to call in. If you are participating, that 

17 number is 1-888-390-3405, and there's a code, 

18 3119415. We'll make the same announcement 

19 later as we come closer to the actual public 

20 comment period as well.

21 During Board discussions and prior 

22 to public comment period, I request that all 
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1 the people in the room remain as quiet as 

2 possible since we're recording the meeting to 

3 produce transcripts. And in the same vein, if 

4 you have a cell phone, please put it on mute. 

5 Thank you.

6 If for any reason the Board members 

7 require clarification on an issue that requires 

8 participation from the public, the Board 

9 members request such information through the 

10 Chair or myself.

11 The FACA requires that minutes of 

12 this meeting be prepared and include a 

13 description of the matters discussed over the 

14 next day and a half, and the conclusions 

15 reached by the Board, if any. As DFO, I 

16 prepare the minutes and ensure that they're 

17 certified by the Board's Chair. The minutes of 

18 today's meeting will be available on the 

19 Board's website no later than 90 calendar days 

20 from today, per FACA regulations. If they're 

21 available sooner, they will be published before 

22 the 90th day.
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1 Also, although formal minutes will 

2 be prepared because they're required by the 

3 FACA regulations, we'll also be publishing 

4 verbatim transcripts, which are obviously more 

5 detailed in nature. These transcripts will be 

6 available on the Board's website by December 

7 16th.

8 And with that, Mr. Chairman, I

9 convene this meeting of the Advisory Board on 

10 Toxic Substance and Worker Health. Thank you.

11 CHAIR MARKOWITZ: Good morning. I'm 

12 Steven Markowitz, and I'd like to welcome the 

13 people here today, welcome the Board members, 

14 especially Board members who stepped off a 

15 plane last night from a different time zone. 

16 We're going to try to keep this meeting lively 

17 enough to keep you engaged.

18 I would like to welcome members of 

19 the public for coming today, and also people 

20 participating on phone or online, I welcome you 

21 all as well.

22 I'd like to thank a few people just 
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1 to start off, our people from the Department of 

2 Energy, in particular, Lokie Harmon, in the 

3 back, and Isaf Al-Nabulsi, who are from the 

4 Health and Safety unit at Department of Energy. 

5 And they helped, along with Greg Lewis, arrange 

6 for our tours, our excellent tours the last two 

7 days in Sandia National Lab in Los Alamos. So, 

8 thank you very much.

9 And I'd also like to thank Doug 

10 Fitzgerald and Carrie Rhoads for all the work 

11 that you do with us to make these meetings 

12 happen and us informed about the program. And 

13 of course, Kevin Bird and Melissa Schroeder and 

14 others who are supporting the meeting.

15 We'll start off with introductions. 

16 First, Board members, and then actually I'd 

17 like the public who are here to just introduce 

18 yourselves for us as well.

19 So I'm Steven Markowitz. I'm a 

20 professor at the City University of New York. 

21 I'm an occupational medicine physician and an 

22 epidemiologist, and for the past 20 years I've 
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1 been running one of the larger former worker 

2 medical screening programs across the DOE 

3 complex.

4 MEMBER SILVER: I am Ken Silver, I'm 

5 an Associate Professor of Environmental Health 

6 in the College of Public Health at East 

7 Tennessee State University. I lived in New 

8 Mexico from '97 to 2003. I've been back often.

9 When I was here, I was very active 

10 on the ground with Los Alamos workers and 

11 families to first get compensation legislation 

12 passed as many of the workers at the other 

13 sites were.

14 And then following up on 

15 implementation, I have to observe that the six 

16 doctors on the Board have prodigious medical 

17 expertise and scientific knowledge, and they've 

18 spent their careers in fact-based advocacy on 

19 behalf of workers, as have many of the other 

20 Board Members.

21 So I don't think New Mexico has seen 

22 such an assemblage of occupational health 
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1 talent, free of conflicts of interest since 

2 Harriet Hardy went home 69 years ago.

3 MEMBER POPE: Duronda Pope, United 

4 Steel Workers. I'm a former worker of Rocky 

5 Flats, 25 years out there. My job with the 

6 United Steelworkers is to respond to fatalities 

7 and critical injuries that happen with our 

8 members, and I've always been an advocate for 

9 people that have been injured and hurt or sick.

10 MEMBER REDLICH: I'm Dr. Carrie 

11 Redlich. I'm a Professor of Medicine at the 

12 Yale School of Medicine, also a Professor of 

13 Epidemiology in the School of Public Health. 

14 I'm a physician, pulmonary physician, also 

15 occupational and environmental medicine 

16 physician, and I'm Director of the Yale 

17 Occupational and Environmental Medicine 

18 program.

19 MEMBER CASSANO: I am Tori Cassano, 

20 I am a retired Navy Occupational Physician and 

21 spent many years in VA, working on the same 

22 types of issues for veterans and currently I 
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1 have my own consulting company.

2 MEMBER DEMENT: I'm John Dement. 

3 I'm Professor Emeritus in the Division of 

4 Occupational and Environmental Medicine at Duke 

5 University Medical Center. My areas of 

6 interest and expertise are industrial hygiene, 

7 exposure assessment, and occupational 

8 epidemiology. I've also participated for the 

9 last 20 plus years with the screening program 

10 for construction workers at BTMED.

11 MEMBER GRIFFON: Hi, I'm Mark 

12 Griffon, I'm an Occupational Safety and Health 

13 Consultant, and I also was on the sister board 

14 to this Board, sort of the sister board that 

15 oversees the radiation side of the program and 

16 advises NIOSH, the Advisory Board on Radiation 

17 Worker Health. I was on that for over ten 

18 years.

19 MEMBER DOMINA: My name is Kirk 

20 Domina, I'm the Employee Health Advocate for 

21 the Hanford Atomic Metal Trades Council in 

22 Richland, Washington. I'm an active worker 
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1 going on 35 years as a reactor operator and 

2 nuclear chemical operator, so I work on this 

3 program, workers compensation, and short4 term/long-term disability. HAMTC currently has 

5 about 2,600 active members through fourteen 

6 affiliated unions.

7 MEMBER TURNER: My name is James 

8 Turner. I worked at Rocky Flats Nuclear 

9 Weapons plant for 26 years. I was diagnosed in 

10 1990 with the chronic beryllium disease.

11 MEMBER SOKAS: I'm Rosemary Sokas. 

12 I'm a Professor of Human Science and Family 

13 Medicine at Georgetown University, and an 

14 Occupational Medicine physician.

15 MEMBER BODEN: I'm Les Boden. I'm a 

16 Professor in the Environmental Health 

17 Department at Boston University School of 

18 Public Health and have spent a lot of my life 

19 thinking about workers compensation issues.

20 I was also on the predecessor to the 

21 EEOICPA Act Advisory Board, which -- whose name 

22 I can no longer remember. And I worked for a 
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1 while with the former worker project at Los 

2 Vegas, Nevada Test Site.

3 MEMBER VLIEGER: Good morning. My 

4 name is Faye Vlieger. I'm a former Hanford 

5 worker. I'm also a worker advocate under the 

6 EEOICPA. I was injured in Hanford in a 

7 chemical exposure in 2002, and found that it 

8 was really difficult to do a labor and 

9 industries claim within my claim with the US 

10 Department of Labor that I started in 2004. 

11 And I continue to be a worker advocate in the 

12 Hanford area in Richland, Washington.

13 MEMBER WELCH: I'm Laura Welch. I'm 

14 also an Occupational Physician and Medical 

15 Director for the Center for Construction 

16 Research and Training which is the research and 

17 training affiliate of the AFL-CIO Building and 

18 Construction Trades Department. I've been 

19 involved in health and safety in the 

20 construction industry since the early 1980s, 

21 and at CPWR for about fifteen years. I was also 

22 on the DOE board that -- the board that advised 
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1 DOE administration, the Part E compensation 

2 program before they handed it over to DOL.

3 Part D, I'm sorry, Part D. Yes, you 

4 know, I was explaining to somebody the other 

5 day, A, B, C, D, E, and I couldn't get the A or 

6 the D, so thanks, that helps.

7 MEMBER WHITLEY: I'm Garry Whitley, 

8 I worked at Y-12 National Security Complex for 

9 42 years. I've been retired and working with 

10 the Worker Health Protection Program for seven 

11 years, and I worked with --- to help clients 

12 trying get their claims back out of the ditch 

13 when they don't understand them.

14 MEMBER FRIEDMAN-JIMENEZ: I'm George 

15 Friedman-Jimenez. I'm an Occupation Medicine 

16 Physician and Epidemiologist and Medical 

17 Director of the Bellevue NYU Occupational 

18 Environmental Medicine Clinic.

19 We provide occupational medicine 

20 services to low income workers throughout New 

21 York City who use the public hospital system 

22 for medical care. I'm also an Assistant 
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1 Professor of Epidemiology in the Department of 

2 Population Health at NYU School of Medicine.

3 CHAIR MARKOWITZ: If we could have 

4 the members of the public -- just introduce 

5 yourselves.

6 MS. TURPIN: My name is Cathy Turpin, 

7 and I was employed with Sandia Labs from 1980 

8 to '89 as a supervisor. I have a Master's 

9 degree in toxicology so now it's interest. And 

10 then I've also filed a claim because I have 

11 multiple-sclerosis for those of you that don't 

12 know. So I get half-price train rides and half13 price bus fares, so I'm here.

14 MR. LEREW: My name is Tim Lerew. I 

15 have the honor this year to serve as the chair 

16 of the Cold War Patriot Community Advocacy 

17 Group. We now have 55,000 nuclear weapons 

18 members. And it's a pleasure to see the Board 

19 and the --- the really excellent participation 

20 from the public here today.

21 MS. TRUJILLO: My name is Becky 

22 Trujillo and I am a former Los Alamos worker, I 
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1 worked up there from 1967 to 1999. Currently I 

2 work with the former Los Alamos and Sandia 

3 workers program with Johns Hopkins University.

4 MS. CADORETTE: Hi, my name's Maureen 

5 Cadorette, and I am from John Hopkins 

6 University. I am an assistant scientist there. 

7 I work on the Los Alamos and Sandia former 

8 workers program.

9 MS. PENNINGTON: Good morning, I am 

10 pleased to be here. My name is Maxine 

11 Pennington. I am a Kansas City plant worker. I 

12 was a chemist and chemical lab manager from 

13 1981 through 2013. And over that time saw the 

14 changes. I lived through the changes that we 

15 saw in chemicals, in chemical use, chemical 

16 health safety and environment within the plant 

17 and across the complex because chemistry lab 

18 managers went -- worked together across the 

19 whole site.

20 MS. JAN MARTINETTE: Good morning, 

21 and thank you so much for having this and being 

22 open to the public. And I have to admit I drove 
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1 from Kansas City, leaving last Friday at noon 

2 to get here by myself because all my friends 

3 are old and decrepit, I'm sorry. No, I am a 

4 spouse. My husband worked at Honeywell from '63 

5 to 2007 when he died of two cancers, esophageal 

6 and stomach. And of course I know too much and 

7 keep thinking, maybe I ought to say too much so 

8 that I can go to prison and get taken care of 

9 the rest of my life, because I'm not getting my 

10 claim over ten and a half years. I'm sorry, I 

11 had to throw that in. Anyway, I appreciate you, 

12 I hope that you realize there are people like 

13 me out there and in the Kansas City area 

14 especially. We've not had anything like this in 

15 the Kansas City area for people to be heard, 

16 and to hear from you all as to, what else can 

17 we do to get the claims, okay? Because I am 

18 trying to help anybody I can. I was a three19 term state rep, and I know a lot of folks, and 

20 I'd like to help them. Please help me help 

21 them, will you? I appreciate it. Thank you. 

22 MS. LEITON: I'm Rachel Leiton, I'm 
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1 the director of the energy compensation program 

2 at the Department of Labor. And I appreciate 

3 the Board, all of the work that you guys have 

4 done for us, and look forward to the 

5 interactive discussion this week.

6 MS. SMITH: I'm Joleen Smith. I'm the 

7 district director of the Seattle District 

8 Office for DOL OWCP.

9 MR. MONTOYA: I'm Jose Montoya, and I 

10 worked at Los Alamos for 40 years. I have a 

11 claim in, and it seems like I can never supply 

12 the right answers. I have had an exchange of 

13 letters between the Department and myself, you 

14 know, trying to provide whatever information 

15 they need, but it seems like it always comes 

16 back that they need more information. So I'm 

17 running out of answers right now, so I need 

18 some help.

19 MS. PEARSON: I'm Tiffany Pearson. 

20 I'm the daughter of a former worker and I'm 

21 also the clinical director for Critical Nurse 

22 Staffing, who does home care for the workers.
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1 MR. NELSON: Good morning, my name is 

2 Malcolm Nelson. I'm the current ombudsman for 

3 the Energy Employees Occupational Illness 

4 Compensation Program.

5 MS. BARRIE: Good morning and welcome 

6 --- and thank you for opening up this 

7 discussion to the participants today. My name 

8 is Terrie Barrie. I'm with ANWAG a founding 

9 member of the Alliance of Nuclear Worker 

10 Advocacy Groups. Besides assisting workers with 

11 their claims, one of my purposes is to try to 

12 make sure everybody is informed about the 

13 program news and changes as widely as possible. 

14 Thank you.

15 MS. JERISON: I'm Deb Jerison, I am 

16 the daughter of a deceased, now, laboratory 

17 worker, and I'm the director of the Energy 

18 Employees Claims and Assistance Project. And a 

19 worker advocate for Cold War Patriots.

20 MS. BLAZE: I'm D'Lanie Blaze, of 

21 CORE Advocacy for Nuclear & Aerospace Workers. 

22 I help workers of Santa Susana Field Laboratory 
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1 where my dad worked on the Saturn V.

2 MR. BARRIE: Hello. I am George 

3 Barrie, I've been a machinist since 1975. I 

4 started plant-side at Rocky Flats in '82. I had 

5 a radiation exposure, and now I am a disabled 

6 Rocky Flats Part E Claimant, and it's still on7 going. Thank you.

8 MS. AL-NABULSI: Good morning, I am 

9 Isaf Al-Nabulsi, senior technical advisor at

10 the Department of Energy Office of Health and 

11 Safety.

12 MS. SPLETT: Good morning, my name is 

13 Gail Splett. I'm with the Department of Energy 

14 Richland Operations Office. I'm the EEIOCPA 

15 program manager there.

16 MR. HINNEFELD: I'm Stu Hinnefeld 

17 from the NIOSH -- NIOSH Division of 

18 Compensation Analysis and Support. And I was 

19 here for an outreach meeting last night, and I 

20 am being tourist today.

21 MS. JACQUEZ-ORTIZ: Good morning, 

22 Michele Jacquez-Ortiz on US Senator Tom Udall's 
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1 staff. I am going to be presenting this

2 statement a little later in the meeting on 

3 behalf of Senator Udall, but just wanted to 

4 thank you, thank you all very much for hosting 

5 the meeting here in northern New Mexico and 

6 allowing the claimants here to participate.

7 MR. KINMAN: I'm Josh Kinman and I'm 

8 also a tourist. I'm with Stu in NIOSH's 

9 Division of Compensation Analysis and Support. 

10 I work primarily with special exposure, 

11 coordinating that part.

12 MS. MOSS: Hi, I am Rebecca Moss, I 

13 am a reporter from the Santa Fe New Mexican. 

14 I've been covering you guys for about two 

15 years, so thanks for being here. 

16 MS. HARMOND: Hi, I am Lokie Harmond 

17 and I work with the Compensation Program at the 

18 Department of Energy.

19 CHAIR MARKOWITZ: Okay, thank you. 

20 We're going to, I want to just walk through the 

21 agenda for a few minutes so we know where we're 

22 heading. And we're going to discuss for a few 
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1 minutes the transition to a new Board, this 

2 Board's terms are up in February, except for 

3 one member whose term ends in March, and the 

4 Department of Labor is going to be appointing a 

5 new Advisory Board.

6 And so we need to figure out how to 

7 close out the work that we're doing and hand it 

8 over. And then we're going to talk about the 

9 DOL's responses to two sets of recommendations 

10 that we made, a set that we made a year ago, 

11 and a set that we made in April.

12 And we're going to be spending I 

13 think much of the day talking about those. I'm 

14 not sure how long it's going to take, so I put 

15 in time frames, but we'll see how it goes.

16 And then in the afternoon, we will 

17 hear reports from the subcommittees, in 

18 particular two committees that have specific 

19 issues that they want to raise, the Weighing 

20 Medical Evidence and CMC & IH Subcommittee and 

21 also the special exposure --- excuse me, the 

22 SEM, the Site Exposure Matrix Subcommittee.
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1 And then finally from the Part B 

2 Lung Disease Committee. And then we have a 

3 4:30 to 6:00, a public comment period.

4 Tomorrow morning we resume at 8 

5 o'clock, and we'll hear a little bit on ---

6 from the Presumptions Working Group, but then 

7 we're going to deal with a number of different 

8 items. We will have time tomorrow to handle 

9 business from today that we don't complete.

10 So some of the items tomorrow we can 

11 --- are of lesser priority, not unimportant but 

12 of lesser priority. So we can move them or 

13 shorten them if need be. But we would like to 

14 have some discussion about the changes in the 

15 procedure manual.

16 I would like to take some time if we 

17 have it to review the public comments, to make 

18 sure that we're integrating what people say 

19 into our agenda. And then we need a time table 

20 for how we're going to complete our work by 

21 February.

22 Any questions or comments on the 
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1 agenda? Any items that I didn't include, or 

2 someone would like to add? Okay.

3 So, let's talk about transition to a 

4 new Board. I don't know, Doug, whether you 

5 want to say anything about the process, or time 

6 table just briefly, just to fill us in.

7 MR. FITZGERALD: In the nomination 

8 notification that went out in the Federal 

9 Register, it pretty much laid out the -- kind 

10 of the guidelines that the Secretary will 

11 follow in terms of looking at a new Board.

12 It's a new Board, but we don't know 

13 what that's going to constitute. It could be 

14 the same membership, it could be new members, 

15 it could be any combination of those things. 

16 The goal obviously is to try to have a new 

17 Board seated before the expiration of the terms 

18 of the current Board members, which is in 

19 February and March of next year.

20 CHAIR MARKOWITZ: Okay, so I would 

21 then like to thank the Board Members for the 

22 amount of work that we've done basically since 
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1 we started in April 2016 with our first 

2 meeting. We've had, this is our fifth meeting 

3 in 19 months. We've had four in person, we've 

4 had one by telephone.

5 In addition to our five meetings, we 

6 have had 17 subcommittee or working group 

7 meetings during those 19 months. So we've done 

8 a lot of work, a lot of work to understand the 

9 EEOICP because it is a complicated program, and 

10 then some work to try to make recommendations 

11 that could improve the program.

12 I -- I've said this before, but I 

13 think it's worth remembering that Part E of the 

14 EEOICPA is an extraordinarily challenging 

15 program. It covers all occupational diseases, 

16 and it covers all toxic substances.

17 And that means it's really a 

18 universe of occupational illness, and given the 

19 number of exposures that we've heard about in 

20 the SEM, 30,000 or more, it's probably a large 

21 universe of exposure to toxic substances.

22 So I can't think of another program 
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1 which has had to do this. Agent Orange in the 

2 VA is a single agent, black lung which is part 

3 of OWCP, is essentially a single toxic 

4 substance with a limited number of diseases.

5 State worker's comp systems frankly 

6 don't routinely handle occupational diseases 

7 very well. That was part of the problem with 

8 Part D from 2000 to 2005 in which Congress 

9 wanted the Department of Energy to deal -- to 

10 work with the State Worker's Comp system to 

11 facilitate claims from energy employees.

12 That didn't work, and they had to go 

13 to Part E to take more direct control of it. 

14 So state workman's comp systems don't really 

15 address this.

16 So this is really, I think, a unique 

17 program, and an extraordinarily challenging 

18 program. And certainly the program at DOL has 

19 made tremendous progress in standing up to 

20 programs and compensating a larger number of 

21 people and processing a large number of claims

22 and they deserve a lot of credit for the work 
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1 that they've done.

2 There have been almost 300,000 

3 claims under the EEIOCPA, if you combine part B 

4 and part E, 300,000 claims since 2001 or so. 

5 And in Part E, there have been 132,000 claims 

6 that have been submitted over the past, well 

7 since 2006 or maybe --- well the program began 

8 in 2006, right? Or 2007.

9 But in any case, a very large number 

10 of claims, and there's been $4.2 billion in 

11 compensation under Part E.

12 Medical care Part E and Part B are 

13 combined on the website so it's 4 million -- $4 

14 billion in medical costs from Part B and Part E 

15 combined.

16 So it's a large program. Part B and 

17 Part E combined, compensation and medical 

18 expenses are at fourteen plus billion at this 

19 point.

20 And we have our own, taken our own 

21 steps to understand this program. And I think 

22 our recommendations to date reflect that 
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1 understanding. But I would also say that 

2 looking at the DOL responses, that clearly 

3 there needs to be some back and forth.

4 They ask for clarification, they ask 

5 for some documentation on some of our 

6 recommendations, they disagree with some of our 

7 recommendations, they accept some of our 

8 recommendations, and we'll go through that.

9 But what I would like to make sure 

10 is that in February when we -- when we're done, 

11 that we have products in relation to the 

12 recommendations that we've made this far.

13 So we're going to have discussions 

14 about the DOL responses. And I think we should

15 then now write our own, when relevant, write 

16 our own set of comments about their responses. 

17 And not --- not today, we're not going to write 

18 those comments today, but we're going to 

19 develop those and then submit them before the 

20 end of the term of the Board, before February.

21 That may take another telephone 

22 meeting of the Board towards the end of 
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1 January. We should agree on the major points 

2 of our responses today and tomorrow. We should 

3 agree on the major comments we have on --

4 because there will not be time in the term of 

5 the Board to do that in a substantive way by 

6 the end of January.

7 So we should try to agree on our 

8 view of the responses. And those will be 

9 written up, I used the passive voice there, but 

10 they will be written up by volunteers on the 

11 Board. And then we will probably have to have 

12 a telephone meeting in order to affirm those by 

13 --- by vote.

14 But we'll see about that. But 

15 that's I think where we're heading in the next 

16 two plus months. Any comments or questions 

17 about that? Okay. So let's begin.

18 We're going to start with the DOL 

19 responses to our Board Recommendations from 

20 October 2016.

21 Now, these were on our website, 

22 posted some time ago, I'm not sure exactly 
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1 when. I know that the -- in the last few days, 

2 a more recent set of responses was also posted, 

3 but we're talking about our recommendations 

4 that we submitted a year ago, and these are DOL 

5 responses to our recommendations.

6 For those of you on the phone, if 

7 you can't see them on the WebEx, if you have 

8 access to the web, you can go to the website, 

9 to our Advisory Board Toxic Substance and 

10 Worker Health website. You go to our meetings

11 and you'll see among the materials listed for 

12 this is what we're going to go over now.

13 And we also have it, we have -- the 

14 Board has paper copies from the folder, so you 

15 can look at that. But you can also look at the 

16 board. So we can move up, we don't need to 

17 look at the transmittal letter from Ms. 

18 Hearthway.

19 So I think actually it would be most 

20 useful, both for Board members and for the 

21 public if we actually read the DOL responses. 

22 And so I will start off reading the first one, 
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1 and then I think we should just go around the 

2 table with Ken, maybe you can read regulation, 

3 excuse me, the response number two, and then 

4 we'll have a discussion.

5 So Recommendation 1, which we 

6 recommended, that a certain circular be 

7 rescinded. The OWCP response is, "As OWCP 

8 communicated to the Board in the interim 

9 response of March 24, 2017, we agree with this 

10 recommendation and have rescinded this 

11 Circular, on February 2, 2017.

12 "While OWCP believes there is 

13 literature to support that there were greater 

14 safety measures in place beginning in the late 

15 1990s, the Circular was rescinded to avoid the 

16 appearance that one cohort of claimants is 

17 being held to a higher burden of proof than 

18 others. We have a plan in place to review 

19 cases that may be affected by this change."

20 So they agree with our 

21 recommendation. Any comments on this?

22 MEMBER SILVER: If I may.
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1 CHAIR MARKOWITZ: Sure.

2 MEMBER SILVER: I remember being at 

3 Terrie Barrie and ANWAG's summit with the 

4 agencies two years ago when this was discussed. 

5 And the initial rationale was that DOL had 

6 received data from DOE to support the 1995 cut 

7 point.

8 And after the meeting, DOE couldn't 

9 remember having provided the data to DOL. So I 

10 see a pattern here of DOL kind of dropping back 

11 to punt, and now pointing to the literature.

12 So I'm glad they took our 

13 recommendation. But if we see a similar 

14 pattern of claiming data and then dropping back 

15 to vague concepts like the literature, we 

16 should be aware of it.

17 MR. FITZGERALD: Dr. Silver and 

18 other members, as you speak, please identify 

19 yourself as you're making comments for the 

20 transcript, thank you.

21 CHAIR MARKOWITZ: Yes, Dr. Sokas?

22 MEMBER SOKAS: Dr. Sokas. And I 
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1 just want to support what Dr. Silver just said. 

2 The rationale for accepting is a little 

3 disconcerting that it's meant not to show the

4 disproportionate burden on any one group but in 

5 fact the rationale is that there is no credible 

6 evidence that the problem had been alleviated 

7 in the late '90s to the extent that it would 

8 not be still causing diseases. So again, I'm 

9 agreeing with that comment.

10 CHAIR MARKOWITZ: Dr. Redlich?

11 MEMBER REDLICH: Dr. Redlich. I was 

12 wondering if the Department of Labor could let 

13 us know what the plan that they have in place 

14 is to review cases that may be affected by this 

15 change.

16 CHAIR MARKOWITZ: Ms. Leiton?

17 MS. LEITON: Hi, this is Rachel 

18 Leiton. We have actually, we don't have a 

19 mechanism to identify specific 1995 in our 

20 system. So we've done more of a manual 

21 process. A lot of the cases that might have 

22 been referred an IH have been referred to an IH 
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1 instead.

2 We've been able to identify a cohort 

3 of them, provide minimum lists to our claims 

4 staff to begin that process. We've --- I don't 

5 know exactly the number that we've referred 

6 back to industrial hygienists for their review 

7 for those periods, particularly those that have 

8 been denied.

9 We've been able to go back and look 

10 at the ones that have been denied for exposure 

11 or causation. And as I said, it's a manual 

12 process because we can't specify that it was 

13 only 1995 or after, so we've had to look 

14 through them individually.

15 And so it's one of the many projects 

16 that we've given to our District Office staff 

17 to review as they can, and go back and refer 

18 them to industrial hygienists.

19 Moving forward since the rescission 

20 of that, anything that was after the 1995 for 

21 exposure analysis was referred to industrial 

22 hygienist as appropriate.
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1 CHAIR MARKOWITZ: Ms. Vlieger?

2 MEMBER VLIEGER: Anecdotally, I'm 

3 finding the manual process that's in place a 

4 bit spotty. I was with a claimant for a final 

5 adjudication branch hearing and the claim being 

6 sent to industrial hygienists after their 

7 rescission date of the circular and to a CMC 

8 after the industrial hygienist. And neither 

9 one of those saw that they should not be 

10 reviewing it with that circular, yet they both 

11 mentioned that circular. I'm happy to report 

12 that hearing examiner agreed that it needed to 

13 be remanded because it had been done wrong. 

14 But I think the manual system has fallen apart.

15 CHAIR MARKOWITZ: Dr. Boden?

16 MEMBER BODEN: Just a quick request. 

17 It would be helpful, I think, first of all, I 

18 understand this must be a very difficult 

19 process going back and manually reviewing all 

20 these denied claims.

21 But I think it would be of interest 

22 to the Board if you could report to us on sort 
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1 of how many claims have been reviewed and how 

2 many of those have been remanded to be looked 

3 at again.

4 MS. LEITON: I'm going to do my best 

5 to do that. As I said, it's hard to track them 

6 in our system. We just don't have a particular 

7 mechanism for it. But I will get you the best 

8 data that we can on it.

9 CHAIR MARKOWITZ: So, I have a 

10 question, Ms. Leiton, about the language of the 

11 response, the higher burden of proof. Because 

12 the original circular was about assuming the 

13 significance of exposures before or after 1995. 

14 And the concern expressed about higher burden 

15 of proof suggests that assumptions or 

16 presumptions about exposure by limited -- by 

17 certain time periods isn't acceptable.

18 And that kind of goes to the heart 

19 of presumptions. Because presumptions are 

20 about, in the absence of data, making certain 

21 assumptions about exposures, or it can be of 

22 diseases, but mostly we've discussed exposures. 
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1 I wouldn't regard that as a higher or lower 

2 burden of proof.

3 But I'm concerned if the Department 

4 views it that way because I think presumptions 

5 are necessary and important for multiple 

6 reasons. But I am concerned if they are judged 

7 by --- as being, as representing a differential 

8 burden of proof, now that may be a question for 

9 the lawyers, I don't know. But I'm wondering 

10 about you're thinking about that.

11 MS. LEITON: So, the presumptions 

12 that we made for the 1995 and for these 

13 circulars was based on exposure. It was based 

14 on a lot of the safety regulations that started 

15 very early in the '70s and went through the 

16 '80s. 1995 was a demarcation date when certain 

17 safety measures were in place.

18 This is something we outlined in a 

19 program memorandum when we issued that 

20 circular. When we say that -- when we look at 

21 that circular, what it does is it provides a 

22 presumption, but it's kind of a, it's an 
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1 opposite presumption, and that's one of the 

2 main reasons.

3 Trying to put a line in the sand 

4 that says 1995, as you guys pointed out, makes 

5 it so that after 1995, we're going to assume it 

6 was within regulatory limits for exposure. And 

7 that's what we're going to assume instead of 

8 going to an industrial hygienist.

9 And then we would go to a doctor and 

10 say this is within regulatory exposure limits. 

11 And so that's the presumption that we realized, 

12 or -- and we've tried to make presumptions in 

13 the past that are kind of similar that used to 

14 say well, if they had this condition, it 

15 probably wasn't related. That was a long time 

16 ago, we rescinded that one as well.

17 But it was so that we could do 

18 something to kind of say, okay, there are some 

19 cases that we can make assumptions on. That is 

20 probably not a good idea to make negative 

21 presumptions of associations.

22 And that's what rescinding this 
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1 circular was trying to do, is saying okay, 

2 maybe we shouldn't make negative presumption 

3 exposure determinations, and we should say 

4 refer these to industrial hygienists. There 

5 might be certain circumstances in which, you 

6 know, it was a higher level than may have been 

7 within regulatory analysis.

8 And so that's really what that was 

9 about. I believe that presumptions, and 

10 particularly this program, positive 

11 presumptions can be probably more beneficial 

12 than anything that we could say that said in 

13 the absence of anything further, we're going to 

14 go ahead and assume that there wasn't as high 

15 of an exposure level. And that's what 

16 rescinding these two circulars did.

17 CHAIR MARKOWITZ: So just to follow 

18 up. This is Steven Markowitz. So then this 

19 issue of burden of proof is invoked, becomes 

20 relevant with a negative presumption, and there 

21 aren't that many negative presumptions in the 

22 program which is nice.
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1 But the issue of positive 

2 presumptions, which the current program has and 

3 which we're recommending more of. The issue of 

4 burden of proof is not really relevant. Is 

5 that -- is that a correct determination?

6 MS. LEITON: Well, I mean --

7 CHAIR MARKOWITZ: And let me just 

8 finish. I say that because the reason you make 

9 a presumption is because you can't really get, 

10 you can't prove anything. You can't, you don't 

11 have those exposure data, for instance, to 

12 prove. It's not a higher burden of proof for 

13 people who meet these certain presumption.

14 So I just want to make sure that 

15 this argument about burdens of proof doesn't 

16 somehow undermine the development of positive 

17 presumptions.

18 MS. LEITON: No, I don't think so. 

19 I think when we used the term burden of proof, 

20 or when this language developed, the idea was 

21 that if you're trying, if you had a -- when the 

22 circular was in place, if you had a claim for 
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1 exposures after 1995 only, then we would be 

2 looking more closely, probably, at what type of 

3 higher exposures you may have had that went 

4 beyond the regulatory standards.

5 And that would be going back to the 

6 claimant a lot of times, meaning the burden of 

7 proof looks higher because then we're trying to 

8 establish a higher level of exposure than we 

9 would if we had a positive presumptions.

10 So it doesn't, if we have a positive 

11 presumption, a burden of proof is going to be a 

12 little bit less for the claimant because they 

13 don't have to -- like for example, the SECs. 

14 If they have a cancer, one of these 22 cancers, 

15 they were there for 250 days, their burden of 

16 proof is going to be a lot less than if -- if 

17 they're not.

18 And so that's kind of the idea 

19 behind it. It should not affect, this language 

20 itself shouldn't affect the positive 

21 presumptions.

22 CHAIR MARKOWITZ: Dr. Cassano.
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1 MEMBER CASSANO: I think the 

2 problems --

3 CHAIR MARKOWITZ: Dr. Cassano.

4 MEMBER CASSANO: Dr. Cassano, I'm 

5 sorry. I think the problem that we're having 

6 and communicating here is that your basic 

7 premise about what the effect of better 

8 workplace protections are.

9 The work -- within regulatory levels 

10 is strictly a regulatory level. It does not, 

11 it is not the level of no observed adverse 

12 effect. It is at a level that will keep the 

13 majority of workers safe if they are using the 

14 proper protection.

15 That doesn't mean that you're not 

16 going to see any cases after that. You will 

17 see a reduction hopefully in incidence of those 

18 cases, but you're still going to see the cases.

19 So the burden of proof should be the 

20 same, regardless of whether it's before or 

21 after. And I think that's where this 

22 difficulty in communication is.
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1 MS. LEITON: Well, I think the burden 

2 of proof is the same, but you're going to be 

3 looking at the evidence slightly different if 

4 that presumption were still there. But in this 

5 instance, since we rescinded the circular, 

6 we're still going to refer it to an industrial 

7 hygienist.

8 CHAIR MARKOWITZ: Mr. Domina?

9 MEMBER DOMINA: Kirk Domina. I 

10 guess, you know, I look at this, some of it 

11 different, and I understand what you're saying 

12 after 1970. But you know, I lived through a 

13 lot of this, and we were still in a cold war at 

14 that point in time. There -- we have no 

15 industrial hygienists.

16 And then you get into, like, the 

17 tiger teams in 1995, you also have to look into 

18 that point in time, funding goes up and down. 

19 We had no funding after that. So they're not 

20 going to do anything.

21 You can put in all these regulations 

22 you want, you don't provide money to the 
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1 contractors, they're not going to do it. And 

2 now for Hanford specifically, you get into the 

3 late '90s, so the contractors in the last two 

4 years of their contract, they're not going to 

5 do anything.

6 And then you've got two more years 

7 when the new one comes in to try and get up to 

8 speed, and that is also problematic. When you 

9 get into the late '90s, everything's a 

10 performance based contract.

11 And so now you're into this the more 

12 you do, the more you get paid. However, when 

13 you start bringing in some of the, quote, IH 

14 stuff because all of us that have lived it see 

15 it, there's several ways to do monitoring and 

16 take samples, and there's several ways to make 

17 sure you don't find anything.

18 And that's what we live through 

19 today. And we're going to live through it 

20 there for the next two years because these 

21 contracts are going away and new ones are going 

22 to be, RFPs are going out and they're going to 
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1 be issued.

2 And so it's very problematic to me 

3 because the contractors these next two years, 

4 they're not going to do anything that they 

5 don't have to. And I understand you're at a 

6 rock and a hard place, but, you know, I live 

7 this every day.

8 And just putting, like, that drop 

9 dead date for 1995, we had nothing. We had 

10 layoffs in that timeframe. There was almost 

11 nothing going on because we had no money. I 

12 mean, there's work going on, but far as 

13 monitoring, we had no IHs.

14 CHAIR MARKOWITZ: Dr. Boden?

15 MEMBER BODEN: So what I'm hearing 

16 is a certain level of agreement, actually, that 

17 setting the specific 1995 date because there 

18 were certain regulations, internal regulations 

19 in place, wasn't really an adequate description 

20 of what was going on because the regulations 

21 don't necessarily match with conditions.

22 And I just wanted to -- so it seemed 
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1 to me that that is a way of thinking about this 

2 that many of us on the Board would agree with 

3 rather than sort of picking at the burden of 

4 proof issue.

5 So I think we're actually having 

6 some agreement there about this, to which we 

7 may return later on in discussing other parts 

8 of the response to our recommendations.

9 CHAIR MARKOWITZ: Good point. Dr. 

10 Welch?

11 MEMBER WELCH: Yes, Laura Welch. I 

12 want to respond a little bit to the concept of 

13 the plan because we've made, as we go forward 

14 with the recommendations we've made, including 

15 introducing presumptions for specific diseases, 

16 they're going to be many people who had filed a 

17 claim and had the claim denied because -- but 

18 now they would be eligible because there's a 

19 presumption.

20 And I think that this Board and a 

21 future Board would certainly want to know 

22 what's happening with implementing any new 
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1 changes. So I don't know whether that's 

2 something the Department of Labor would want 

3 this Board to make a recommendation about, but 

4 I think you need some way to track this going 

5 back.

6 You know, you told us now that you 

7 can't identify particularly all the cases that 

8 were denied based on that particular circular, 

9 and that's good to know. I mean, and it's the 

10 best you can do.

11 But also at the same time, think 

12 okay, well we're going to be going through 

13 this, you know, six more times over the next 

14 six years as we work through the Board's 

15 presumptions. And I think maybe not even built 

16 into your whole data system, but some kind of 

17 tracking system that documents both the process 

18 and the outcome.

19 You know, when you let people, when 

20 you let the regional offices know, how many 

21 cases you got from each one, that kind of stuff 

22 so it doesn't become just frustrating for 
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1 everybody having the Board sitting here saying 

2 but how do we know that anybody's claim was 

3 really re-reviewed.

4 And you may have thought about that 

5 already, but I think it's just become -- and we 

6 have, like, three or four disease presumptions 

7 that would bring this up big time.

8 MS. LEITON: I agree with you. I 

9 think that, you know, the Board, when the Board 

10 was created, we had procedures in place already 

11 and things that we were doing that did not 

12 contemplate having to track those particular 

13 items.

14 Now that we have a Board, 

15 unfortunately we're not, we can't always 

16 anticipate what the Board's going to decide to 

17 do in order to go back and say oh, well now we 

18 need to find these cases.

19 I think there -- with conditions, 

20 there will be ways to do that because, you 

21 know, unfortunately the way our system is 

22 built, it was built for case management. It 
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1 wasn't really built for necessarily reporting 

2 out to others or that sort of thing.

3 It was built to report on what, or 

4 currently tracking our work. But we've 

5 obviously, we've done this with SECs before. 

6 Every SEC we have to go back and look at cases 

7 that have been denied to see if now they'll be 

8 eligible because there's a new SEC class.

9 So we have ways to do it, we're just 

10 going to have to -- and I agree, we need to 

11 think of that when we see the first 

12 recommendation to see okay, well we better try 

13 to think of how we're going to be able to go 

14 track this, how we can find these cases and 

15 develop processes.

16 Obviously, we're going to want to 

17 show that we've done this, demonstrate how 

18 we've done it. And in some of these cases, 

19 once a presumption is actually established, 

20 there will be a circular or a bulletin that 

21 tells our claims examiners here's the new 

22 process. And at that stage we can try to 
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1 identify it and hopefully have a better 

2 mechanism for identifying some of these cases.

3 The problem with exposures and the 

4 date is that we don't have a way to say their 

5 only verified employment was 1995 forward. We 

6 do have ways to look in the system and say it 

7 was denied for this particular cancer, and we 

8 can go back and pull up all the cases for that 

9 cancer.

10 So hopefully, it won't be as 

11 problematic for all the presumptions as it was 

12 for that one.

13 CHAIR MARKOWITZ: That's good to 

14 know. Any other comments before we move on? 

15 Okay. Can you -- Ken Silver?

16 MEMBER SILVER: Ken Silver reading 

17 DOL's response to Recommendation Number 2. 

18 "OWCP agrees that a number of the references 

19 provided by the IOM Institute of Medicine may 

20 be useful. To facilitate implementing this 

21 recommendation, it would be helpful if the 

22 Board reviewed the list of references and 
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1 narrowed the list specifically to those sources 

2 the Board believes are most relevant, with 

3 recommendations as to how they could be used in 

4 the SEM, site exposure matrix.

5 "As we reviewed the list of 11 

6 sources, we found that some of the information 

7 is not relevant to occupational exposure, some 

8 sources are redundant, and some sources 

9 contradict other sources listed in the Table.

10 "OWCP shared this information in the 

11 interim response sent to the Board on March 24, 

12 2017, and the Board has agreed to provide more 

13 specific and relevant information."

14 CHAIR MARKOWITZ: So let me just 

15 comment that we did receive that letter in 

16 March and I didn't move on it right away in 

17 terms of presenting it. We were busy with the 

18 April meeting in terms of the developing 

19 additional recommendations for the April 

20 meeting.

21 But Dr. Welch has taken up at least 

22 part of this question in the SEM Committee. 
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1 And we'll be discussing it in the SEM 

2 Committee. So I don't know, Dr. Welch, if you 

3 want to weigh in on whether we need to discuss 

4 this or whether we're better off talking about 

5 what you're going to talk about in the SEM 

6 Committee and then coming back to this 

7 recommendation.

8 MEMBER WELCH: Yes, hi. It's Laura 

9 Welch. I think the latter, I think we should 

10 just discuss it all as a whole. And then we 

11 can -- you can remind me if we want to do it to 

12 address the specific language in the 

13 recommendation.

14 We are going to -- we do have a 

15 recommendation from the SEM Subcommittee to 

16 present to the Board that is responsive to 

17 this. And I guess at the same time, in the 

18 rationale for that, we could address whether 

19 HEPA is relevant to occupational exposures, for 

20 example.

21 But I think the response reflects 

22 something that we will have in our 
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1 recommendation, that the Department needs some 

2 expertise internally that can specifically 

3 address the merit of these databases and how to 

4 integrate them in.

5 And the response, I think, reflects 

6 the fact that if it wasn't obvious to the 

7 people writing the recommendation, that they 

8 should include this information that shows a, 

9 you know, is a technical expertise missing. 

10 But we can discuss that in more detail.

11 CHAIR MARKOWITZ: So we're going to 

12 postpone that and move on really just until 

13 this afternoon. Duronda, we're moving ahead to 

14 Recommendation number 3, which if you could 

15 show on the board. Kevin, if you could advance 

16 the board so that people can see.

17 This concerns the, "We recommend 

18 that the former workers from DOE facilities be 

19 hired to administer the Occupational Health 

20 Questionnaire." So, Ms. Pope, if you want to 

21 read the response.

22 MEMBER POPE: "OWCP agrees that it 
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1 is beneficial for former DOE workers to 

2 administer the OHQ interview. Currently, the 

3 Resources Centers, which conduct the OHQ 

4 interviews, are operated by a contractor.

5 "The contractor employs 17 former 

6 DOE employees, 14 staff members and three 

7 managers, out of approximately 60 total 

8 employees. Former DOE employees work in nine 

9 of the 11 Resource Centers.

10 "When vacancies occur, the program 

11 encourages the recruitment of former DOE 

12 employees, to take advantage of their 

13 experience and familiarity with DOE work 

14 processes, labor categories and work 

15 environments.

16 "DEEOIC helps to ensure that all 

17 Resource Centers staff are adequately trained 

18 and skilled in assisting EEOICPA claimants, 

19 including conducting OHQ interviews."

20 CHAIR MARKOWITZ: Thank you. So, 

21 comments? Dr. Boden?

22 MEMBER BODEN: This is Les Boden. 
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1 We seem to be in agreement about the usefulness 

2 of having former DOE workers interview their 

3 people who really know the work better than 

4 anybody else would.

5 I'm wondering if DOL has thought 

6 about doing more than encouraging employment. 

7 So for example, there are cases in which 

8 outside of this program there are, sorry, 

9 preferences given to veterans. And those 

10 preferences basically say that if a qualified 

11 veteran applies, that person goes to the head 

12 of the line.

13 And I'm wondering if having similar 

14 kinds of preferences for former DOE workers 

15 would make it clearer about how much we're 

16 encouraging employment of those people.

17 MS. LEITON: I can look at the 

18 contracts and how that's done. I would have 

19 to, you know, see if there's language we could 

20 put in there about that. There may be, so I'll 

21 take it back and see if that's a consideration.

22 CHAIR MARKOWITZ: Dr. Dement?
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1 MEMBER DEMENT: I guess from the, at 

2 least my perspective on the Board, the intent 

3 of the regulation, or recommendation was to get 

4 the assistance of former workers who I would 

5 say have on the floor or on the production area 

6 expertise, as they know the process, they know 

7 the buildings, they know the information about 

8 site in more detail.

9 I guess the second point is, rather 

10 than passively encouraging employment of these 

11 workers, it seems like it could be actually 

12 sought, even through specifications of what's 

13 required in the contract.

14 MS. LEITON: Right, which is I 

15 believe what Dr. Boden was saying. We'll look 

16 into that.

17 CHAIR MARKOWITZ: Dr. Welch?

18 MEMBER WELCH: Yes, Laura Welch. 

19 Well, one reason we've made this recommendation 

20 and also recommended some changes in the OHQ 

21 that we thought would be -- collect more 

22 information on tasks and exposures.
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1 And the reason we made this 

2 recommendation was that a lot of times, that 

3 the OHQ really doesn't have much. When we see 

4 it for individual workers and the claims, there 

5 is really not that much information in it about 

6 the exposures that they had.

7 So we thought well, okay, let's have 

8 the interviews done by people who know 

9 something about the work site. Now, if that's 

10 already been the case, then this recommendation 

11 isn't very useful because having people who are 

12 knowledgeable in those jobs wasn't fixing the 

13 problem that we saw.

14 Now, it may be the case that the 

15 people who are from the sites aren't, you know, 

16 the former DOE employees who worked and are 

17 doing the interviews are not knowledgeable 

18 about the sites because they were in a 

19 management position and didn't really know the 

20 nature of the exposures.

21 So we either need to refine this 

22 recommendation to make it much more specific, 
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1 or what I think we should probably do, and I'm 

2 not quite -- I don't know how we can get it 

3 done, but if the new OHQ, if the Department is 

4 willing to adopt our recommendations, then OHQ, 

5 we had within that recommendation specific 

6 training recommendations so that people who are 

7 administering the OHQ understand the questions 

8 that they're asking.

9 So my suggestion is we should look 

10 at this one again in the context of the whole 

11 administration of the occupational history 

12 questionnaire, not just focus on whether the 

13 contract should be changed to encourage DOE 

14 workers first. Maybe it should.

15 But also whether that would have 

16 been sufficient to fix the problem that we saw 

17 with the OHQ. And if the new OHQ is, could be 

18 administered by people without as much 

19 experience within the program, I just don't 

20 want us to get lost focusing on this if it's 

21 not going to fix the problem we were trying to 

22 address.
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1 CHAIR MARKOWITZ: Well, you know, 

2 this is Steven Markowitz, I want to just 

3 respond then move to Dr. Cassano. I agree. I 

4 think we can refine our recommendation which 

5 clearly wasn't specific enough, and view it as 

6 a good if it's accepted without neglecting 

7 other aspects that need to be upgraded.

8 But when in this response, and this 

9 I'm going to just raise some rhetorical 

10 questions because I'm not really addressing 

11 them to Ms. Leiton. But when I saw this I said 

12 okay, 17 former DOE employees, what did they 

13 do, right?

14 That's easy enough to find out what 

15 they did at DOE. And then who does the OHQ, 

16 how many of the OHQs are accomplished by these 

17 former DOE workers, or are they done by other 

18 people.

19 And again, that information is a 

20 little bit more difficult to track, although 

21 the data system may or may not have that. But 

22 regardless, the Resource Centers would know 
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1 that.

2 But I don't see the need to go back 

3 and forth getting more information about that 

4 and then develop, refining our recommendation. 

5 I think we can move to refining our 

6 recommendation and just, really just specify 

7 what we meant by the original recommendation.

8 So, Dr. Cassano, did you want to say 

9 something? Dr. Redlich?

10 MEMBER REDLICH: No.

11 CHAIR MARKOWITZ: Dr. Dement.

12 MEMBER DEMENT: I just wanted to go 

13 a little further than Laura indicated. I think 

14 we looked in totality how the occupational 

15 history would be administered and the 

16 information collected.

17 We saw that that needed some 

18 improvements, particularly on specifics of what 

19 the workers actually did. And that reflects 

20 itself in the updated OHQ.

21 The other thing that we'll get to I 

22 think in some of the other recommendations is 
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1 we felt that the information from the OHQ was 

2 not being given much weight in the whole 

3 process of the case.

4 And therefore, we recommended that 

5 some of the health professionals at least have 

6 direct access to the OHQ as opposed to 

7 summaries of information from the OHQ from the 

8 claims examiner.

9 So all of these things are really 

10 tied back I think more in totality giving the 

11 health professionals information that's useful 

12 in trying to determine whether the case is a 

13 defensible case or not.

14 CHAIR MARKOWITZ: I'm sorry, Mr. 

15 Whitley?

16 MEMBER WHITLEY: Garry Whitley. The 

17 OHQ is an important part because I've seen 

18 numerous letters come back from claims 

19 examiners when you claim you've had a certain 

20 chemical that causes a certain disease come 

21 back and say well, you didn't put that on the 

22 OHQ.
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1 So it really is important because a 

2 lot of claims, they look at the OHQ to see if 

3 you said it up front. Keep in mind, a lot of 

4 these claimants are elderly people, and you've 

5 got a long OHQ and I can do the best, or they 

6 can do the best they can trying to go through 

7 them and asking you about the -- but they don't 

8 remember, they've been retired 20 years. They 

9 have no idea what they worked with kind of.

10 And so, but this is important. The 

11 OHQ is very important further down the road in 

12 the claim.

13 CHAIR MARKOWITZ: And I do, I think 

14 some of these, Steve Markowitz, I think some of 

15 these recommendations tie together in 

16 recognizing that the site exposure matrix isn't 

17 perfect. And DOL agrees, we've seen that. The 

18 public has said this to us.

19 It's imperfect. It's necessarily 

20 imperfect. It can be improved, sure, but it's 

21 not going to be perfect. And so there's a need 

22 to develop additional credible sources of 
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1 information, particularly around exposure, but 

2 also around exposure diseases and connections, 

3 but typically around exposure.

4 Other credible sources through this 

5 recommendation, through the next recommendation 

6 to augment, to compliment the site exposure 

7 matrix so that these other sources can overcome 

8 some of the imperfections of the site exposure 

9 matrix. So that's sort of where these things 

10 tie together.

11 MS. LEITON: Dr. Markowitz, can I 

12 just say one thing? I think that focusing on 

13 the OHQ and what we can do more specifically in 

14 that and how we can train on it is going to be 

15 probably more doable for us than trying to 

16 focus on what different resources we can get 

17 that would be DOE former workers.

18 Not that we can't or we couldn't 

19 change the contract, but the mechanism for how 

20 we administer the OHQ, what we actually put in 

21 the OHQ, we put forward a draft which I know 

22 you'll get into later.
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1 But I think that focus and how we 

2 can train people even if they aren't the 

3 experts into drawing out the information we 

4 need is something that we can dig our heels 

5 into more quickly, just as a recommendation.

6 CHAIR MARKOWITZ: Dr. Sokas?

7 MEMBER SOKAS: Yes, I'm a little 

8 concerned honestly with that response just 

9 because a lot of the rest of the conversation 

10 centers around trying to give claims examiners 

11 seven years of medical education.

12 And I think what we've said is that 

13 the former DOE workers have years and years of 

14 lived experience that gives them, that while 

15 training is critically important, and everyone 

16 should be trained to the same standard, et 

17 cetera, it's still missing that level of deep 

18 background understanding.

19 So I think it does, there is a 

20 problem. There's sort of the generic problem 

21 is that you can't hire physicians and 

22 industrial hygienists to administer the claims 
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1 for this program, and you can't necessarily 

2 have every single person be a former DOE 

3 employee.

4 But the challenge, which may take 

5 longer, of getting more former DOE employees to 

6 be administering the OHQ, although that's 

7 challenging -- and I think Laura's point was we 

8 should probably measure the outcomes to see 

9 whether it's really different among, you know, 

10 whether the results are different among former 

11 DOE employees than people who have been trained 

12 but aren't DOE employees.

13 So I mean, that's actually probably 

14 a little project that might be of interest to a 

15 sub-section of the board. But I think our 

16 concern is that the depth of expertise 

17 available through that mechanism would outweigh 

18 the challenges of trying to actually hire more 

19 former employees.

20 CHAIR MARKOWITZ: Dr. Cassano.

21 MEMBER CASSANO: Just a final, Dr. 

22 Cassano. Just to reiterate what Dr. Dement 
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1 said, again all of this is good. But if DOL is 

2 not going to utilize the OHQ as prima facie 

3 evidence for an exposure, then all of what 

4 we're doing is moot.

5 So, and I think either having the 

6 HRP changed to insist on prior worker 

7 preference is a good idea. I think putting 

8 more into the OHQ. But the real issue is using 

9 that OHQ as evidence for exposure rather than 

10 having a claims examiner who knows less than 

11 the former worker about those exposures have to 

12 verify.

13 CHAIR MARKOWITZ: Dr. Silver?

14 MEMBER SILVER: I'm pretty sure I 

15 pointed this out in our October meeting. I've 

16 had the privilege of seeing many of the 

17 questionnaires that the DOE funded Former 

18 Worker Programs had developed that are specific 

19 to the sites.

20 And serving on the Medical Evidence 

21 Subcommittee of this Board, I know that those 

22 questionnaires don't always wind up in the 
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1 claims file.

2 So we've already heard that not all 

3 former DOE employees are equally insightful, we 

4 guess, in administering the OHQ. But I think 

5 those former DOE employees who have 

6 administered the site specific former worker 

7 program questionnaire might do a better job 

8 administering the OHQ because they've seen a 

9 lot of the details of the historical plant 

10 processes and exposures that are brought out by 

11 the former worker program questionnaires.

12 CHAIR MARKOWITZ: Any other comments 

13 on this recommendation? Okay, so let's move 

14 on. Recommendation number 4 which is that we, 

15 and Dr. Redlich, I'm going to just read the 

16 recommendation, but if you could read the 

17 response.

18 "We recommend that DEEOIC establish 

19 a process whereby the industrial hygienist may 

20 interview the claimant directly."

21 MEMBER REDLICH: Dr. Redlich. "OWCP 

22 agrees that there are certain circumstances in 
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1 which it may be beneficial for the IH to speak 

2 directly with the claimant. The claims 

3 examiners have legal responsibility for 

4 adjudication of claims.

5 "As the examiner's role is the 

6 finder of fact and the liaison between the IH 

7 and the claimant, OWCP believes that the claims 

8 examiner's participation in any discussion 

9 between the IH and the claimant would be 

10 necessary and beneficial.

11 "Therefore, in these circumstances, 

12 the claims examiner would coordinate any 

13 discussion between the IH and claimant. DEEOIC 

14 has begun to develop procedures for claims 

15 examiners to use when such discussions are 

16 appropriate."

17 CHAIR MARKOWITZ: Comments? Dr. 

18 Sokas?

19 MEMBER SOKAS: I just want to say 

20 this sounds like a great response, thank you.

21 CHAIR MARKOWITZ: Dr. Redlich.

22 MEMBER REDLICH: I guess, and if you 
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1 could fill us in on what procedures that you 

2 are developing and sort of what criteria you 

3 would use when you would consider that such 

4 discussions are appropriate.

5 MS. LEITON: And so I believe it 

6 might even be on the newest procedure manual

7 change, but I don't want to quote myself. I 

8 wouldn't quote me on that.

9 But basically what we're asking the 

10 industrial hygienists to do is when they look 

11 at the case, if they believe that there should 

12 be further discussion, we reach back out to the 

13 claims examiner, we facilitate a discussion 

14 with the claimant.

15 You know, when I talked to my legal 

16 counsel, they say the claims examiner has to 

17 kind of be there for the discussion so they can 

18 overhear it. But it's pretty simple in terms 

19 of the IH can reach out to the claims examiner, 

20 we facilitate the discussion and it happens.

21 It shouldn't be that difficult of a 

22 procedure to implement.
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1 CHAIR MARKOWITZ: Do you have to 

2 change the contract with the contractor?

3 MS. LEITON: Well, the contractor 

4 will probably reach out to our, we have 

5 industrial hygienists who are the government 

6 officials. And so we have to look at that.

7 But whether or not it has to be, you 

8 know, it might be that we have to have the 

9 government IH also there to listen to the 

10 conversation since they are contractors, but I 

11 don't know the specific response to that. I 

12 can look into it.

13 CHAIR MARKOWITZ: Dr. Cassano?

14 MEMBER CASSANO: Just to go back to 

15 sort of combine these last two recommendations, 

16 a great reason for having that discussion would 

17 be if there is an exposure documented on the 

18 OHQ that the claims examiner cannot verify. 

19 That would be a very good reason for them to 

20 talk to the IH directly with the claimant and 

21 the claims examiner.

22 And I think it's a great process to 
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1 include the claims examiner, not only because 

2 you legally have to, but because they learn. 

3 And I think if we can enact that, I think it's 

4 good.

5 CHAIR MARKOWITZ: Steve Markowitz. 

6 It's also frankly, it's great education for the 

7 claims examiners because they would be 

8 listening in on these detailed conversations 

9 about people's exposures in the plant, and 

10 they're going to learn from that.

11 And they'll learn that for that 

12 particular claim and they'll learn, you know, 

13 over time more generally. And since it's 

14 coming back, the IH product is coming back to 

15 the claims examiners, so the claims examiner 

16 will have a better understanding of what the 

17 thinking is and where it should go. So I think 

18 it's an excellent idea.

19 Other comments, questions? Ms. 

20 Pope?

21 MEMBER POPE: Duronda Pope. I think 

22 this might, by having that conversation with 
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1 the IH and the claim examiner, this might 

2 eliminate the process of going back to the 

3 claimant and asking for more information. They 

4 can have that discussion about what is needed 

5 in that particular claim.

6 CHAIR MARKOWITZ: Okay. So we'll 

7 move on to Recommendation number 5. And now 

8 it's Dr. Cassano's time to read. But let me 

9 say that the recommendation is that, "We 

10 recommend DOL review policy teleconference 

11 notes, redact confidential information, and 

12 post the information in a publically available 

13 database searchable by topic area." Dr. 

14 Cassano?

15 (Off microphone comments.)

16 MEMBER CASSANO: Sorry, do you need 

17 me to start over from the beginning? Okay, 

18 sorry. "OWCP does not support this 

19 recommendation. In the past, DEEOIC management 

20 and Policy Branch staff had conducted internal 

21 policy calls on a monthly basis to discuss 

22 specific cases, often complex or unusual in 
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1 nature, which may not align precisely with 

2 broader policies.

3 "While we provided the Advisory 

4 Board with the policy call notes, the notes 

5 nevertheless generally constitute case6 specific, pre-decisional internal policy 

7 deliberations which OWCP does not believe are 

8 appropriate for the general public.

9 "In this regard, the policy calls 

10 are an informal discussion forum for open and 

11 candid conversation about the details of 

12 individual cases. If the agency participants 

13 believed the notes from these discussions were 

14 to be shared with the public, it could likely 

15 inhibit the open exchange of ideas.

16 "Nevertheless, DEEOIC carefully 

17 evaluates each policy question/determination, 

18 and where material is considered to have broad 

19 applicability, any resulting policy is added to 

20 the Federal EEOICPA Procedure Manual, which is 

21 updated regularly and is available to program 

22 staff and the public on the OWCP/DEEOIC 
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1 website.

2 "We recently converted the online 

3 Procedure Manual to a PDF format, and it is now 

4 searchable by topic area."

5 CHAIR MARKOWITZ: Dr. Sokas?

6 MEMBER SOKAS: Yes, I just want to 

7 say I fully understand what, you know, the need 

8 for confidentiality and for people to be able 

9 to speak freely in that.

10 And so I was really struck by the 

11 richness of those notes. And I wanted to maybe 

12 suggest to the Board that we take it back to 

13 subcommittee. It may well be that one of the 

14 subcommittees may want to just request, you 

15 know, again, we've had access to unredacted 

16 information that we maintain confidentiality 

17 about.

18 And it may well be that if one of 

19 the subcommittees just does this from time to 

20 time, we can provide a list of questions or 

21 discussions just to say, you know, well this 

22 was really interesting, did this find its way 
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1 into the policy manual yet.

2 You know, those kinds of 

3 conversations we could have rather than having 

4 it be, I don't know. So that's something we 

5 could handle internally.

6 CHAIR MARKOWITZ: Dr. Silver?

7 MEMBER SILVER: I have perhaps a 

8 less generous view when I looked at the policy 

9 notes. I don't remember seeing the names of 

10 particular agency personnel. But if they were 

11 there, those could easily be whited out.

12 Environmental and occupational 

13 health is all about making decisions in the 

14 face of uncertainty. And if we want the DOL 

15 decision making process to be transparent and 

16 open, we may as well lay it out there so that 

17 the claimants and their advocates can see 

18 what's being batted around behind the scenes 

19 and take their best shot at revising their 

20 claims.

21 CHAIR MARKOWITZ: So let me say 

22 this, Steve Markowitz. You know, to me, this 
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1 is a tradeoff between transparency and the need 

2 to think out loud without coming to a decision, 

3 the need to bat around ideas and in a non4 public setting, which is important.

5 And transparency, which is 

6 important, and DOL comes down the side for the 

7 need to have that forum to think out loud. And 

8 to me, that's frankly understandable.

9 But what I would like to know is 

10 when this pre-decisional discussion leads to a 

11 change in the policy, the procedure, which in 

12 the response it says, "When it's considered to 

13 have broad applicability, it's then added to 

14 the Procedure Manual which is updated 

15 regularly."

16 So how quickly does that happen? 

17 Who shepherds that through so that there isn't 

18 this silent period where, in effect, there's a 

19 new policy or procedure being applied but it's 

20 not yet part of the openly available procedure 

21 manual or policy documents.

22 MS. LEITON: So, our policy branch 
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1 is the one that reviews all of these, conducts 

2 the policy teleconference calls, updates the 

3 procedure manual, you know, does the circulars.

4 And what we do in that branch is in 

5 some cases we've come across specific cases

6 that have, we say oh, we've already got 

7 guidance out there that's not in compliance 

8 with what we're saying we should be doing.

9 And we'll go and immediately change 

10 it by doing a circular or a bulletin, or we'll 

11 say this needs to change right now and here's

12 what we're going to do about it.

13 Some things are a lot less broadly 

14 applicable. They may be, and ultimately we 

15 will go through, every time we change our 

16 procedure manual, we go through any policy call 

17 notes to see if there are things in those 

18 policy call notes that should be changed.

19 But they may have affected one or 

20 two, maybe, you know, half a percentage of 

21 claimants, of cases that we currently have or 

22 that we see. So it's not as urgent to put that 
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1 particular nuance in the procedure manual.

2 And I say nuance because sometimes 

3 it's not specifically outlined already in our 

4 procedures, it's just something that came up 

5 that wasn't contemplated specifically.

6 So it's kind of hard to explain, but 

7 when you're writing out procedure manuals, we 

8 try to keep them, you know, broad enough that 

9 there's some room for actually looking at a 

10 particular case and making a determination.

11 And the circumstances in a 

12 particular case may be such that oh, well this 

13 might happen in another case and we should 

14 probably put it in our procedures.

15 So bottom line is if it's something 

16 that's a big change from what we've done 

17 before, we will immediately put it out there, 

18 put a circular out there, and then go back and 

19 look at other cases.

20 If it's something that is a nuance 

21 that should be and better be, it's better to 

22 have explained in a procedure manual, we look 
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1 at the last six months or whatever every time 

2 we update our procedures to make sure that 

3 anything like that is incorporated.

4 CHAIR MARKOWITZ: So, there may be a 

5 discussion involving these calls, which will 

6 affect -- which are around the particular case 

7 but aren't broadly applicable, but may well 

8 affect a handful of other, a limited number but 

9 a handful of other cases.

10 It sounds like that doesn't 

11 necessarily enter into either the procedure 

12 manual or circular, bulletin, or the like. But 

13 could there be a mechanism where you make a 

14 decision on a particular case and you 

15 understand that it's not broadly applicable, 

16 but it is going to apply to at least a limited 

17 number of other cases, could you make that 

18 available in some formal way so that people can 

19 understand the claims process as much as 

20 possible?

21 I don't know what the mechanism is, 

22 so --
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1 MS. LEITON: Well, sometimes that 

2 could be done through our precedent setting 

3 procedures. We have decisions out there, a 

4 database on our website that you can look at 

5 and see precedent setting decisions. And 

6 you'll see specific cases for really kind of 

7 maybe oddball things that you wouldn't normally 

8 see.

9 But that's one way we can go back 

10 and look at these types of cases and say oh, 

11 and we put it out there as precedential, and 

12 people can go through those. And we've got 

13 them divided by subject.

14 You know, here's something on 

15 conflict of interest, or here's something on 

16 survivorship that's kind of unique. And that's 

17 one way that we try to do that on a case by 

18 case basis, so people can go back and say oh, I 

19 see that this happened here and maybe we can 

20 apply that in another case.

21 CHAIR MARKOWITZ: Thank you. Dr. 

22 Boden?
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1 MEMBER BODEN: Les Boden. So this 

2 may reflect my ignorance about exactly how you 

3 do things. First of all, let me say I agree 

4 with Dr. Sokas that this is a reasonably 

5 convincing argument. You do need to be able to 

6 brainstorm about things, to think about them 

7 and not necessarily have every word displayed 

8 in public.

9 So I do understand that. My 

10 question goes to the process by which you end 

11 up with a new procedure or policy. Is there a 

12 step where you tell the public we're thinking 

13 about doing this and we would like your input?

14 Because that might be a useful thing 

15 that goes somewhere between, you know, 

16 transcribing your internal conversations and 

17 giving people the chance to look at what the 

18 prospective policy change is and giving them a 

19 chance to get back to you about their own 

20 thoughts, which I think could only be helpful 

21 to you in terms of promulgating these 

22 procedures.
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1 And I guess the other question, the 

2 other thing that would be good is for every 

3 change like this, is at least a brief 

4 description about why the change is happening.

5 MS. LEITON: Okay. It gets really 

6 complicated when you start saying that all of 

7 our changes to our procedures should undergo 

8 public scrutiny. Then that's kind of like a 

9 regulation that undergoes public comment, that 

10 requires us to respond to all those public 

11 comments, and it's a very large, bureaucratic 

12 kind of nightmare to do that.

13 And in terms of obtaining, you know, 

14 it's the more public comments you get, then we 

15 have to stop at every point we try to make a 

16 decision to say oh, we need to ask somebody 

17 else if this is the right way to go and/or, you 

18 know, and then you get 50 different opinions 

19 from 50 different members of the public.

20 And then we're having a public 

21 debate about how we move forward in our 

22 procedures, and that's where we struggle with 
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1 that sort of thing. And it not only applies to 

2 my program, but broadly.

3 When you start doing, going down 

4 that road, it will affect all the other 

5 worker's compensation programs we have, and it 

6 may even go beyond that. So that's where we 

7 get ourselves into a little bit of trouble.

8 We do try to explain in our 

9 circulars and our bulletins when we make 

10 changes, the background behind them. And you 

11 know, when we make changes to the procedure 

12 manual, your suggestion about maybe putting a 

13 little context behind why it's done, that could 

14 probably be done in our transmittal where we 

15 describe the changes that we're making.

16 CHAIR MARKOWITZ: Other comments? 

17 Okay, so we're going to take our 10:00 a.m. 

18 break. We'll resume at 10:15. Thank you.

19 (Whereupon, the above-entitled 

20 matter went off the record at 9:58 a.m. and 

21 resumed at 10:16 a.m.)

22 CHAIR MARKOWITZ: Okay, we're going 
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1 to get started again. We're going to say that, 

2 now we changed the situation with the mics 

3 because apparently on the phone there's some 

4 difficulty hearing.

5 So now you have, for the Board 

6 members, you actually have to press the button, 

7 Dr. Boden, you have to, Ms. Leiton, Dr. Boden, 

8 as in the previous meeting when you sat next to 

9 him, you may need a reminder.

10 But in any event, you have to press 

11 the button, bring the mic closer to you so 

12 everybody can hear. Okay. So we're going to 

13 continue on Recommendation 6 which says that, 

14 "We recommend that the Department of Labor 

15 explore the feasibility of prospectively having 

16 new case files made accessible to the claimant 

17 through a password protected electronic 

18 portal."

19 And then, we're going to discuss 6 

20 and then we'll move to 8. So, Dr. Griffon, if 

21 you could give the response, the DOL's response 

22 to number 6? Oh, Dr. Dement, yes okay, sorry 
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1 about that.

2 MEMBER DEMENT: Is this on? Okay. 

3 Okay, I'll take number 6. It says, "OWCP 

4 supports the first of these two 

5 recommendations. We agree that claimants are 

6 entitled to access their own case files. To 

7 implement this recommendation, DEEOIC plans to 

8 leverage technological solutions utilized by 

9 other divisions within OWCP.

10 "While implementing this 

11 recommendation may seem simple on the surface, 

12 it requires that the new interface/portal be 

13 programmed to assure that each claimant can 

14 only see his or her own specific and targeted 

15 information from our claims and document 

16 management systems.

17 "This activity will begin in FY 

18 2018, if OWCP is able to obtain additional 

19 resources. To access this new interface, 

20 DEEOIC would need to create new tools to 

21 implement methods, authenticate users accessing 

22 the portal, including and maintaining two-
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1 factor authenticated username and password 

2 access and systems provisioning that assures 

3 that case specific access to only what the user 

4 is authorized to see.

5 "Additionally, DEEOIC systems are 

6 not currently able to be accessed outside of 

7 the DOL firewall, so there would be additional 

8 security measures and costs to develop and 

9 maintain the integrity of our claimant's 

10 private data and to protect against the 

11 vulnerabilities created by public access.

12 "Costs would include those for 

13 initial start-up and annual maintenance. We 

14 would also need to modify our existing IT 

15 contract and procure new contracts for identity 

16 proofing. DEEOIC will need to develop new 

17 procedures, procure additional resources, issue 

18 contract modifications and develop training."

19 So, basically their response is it's 

20 not currently technically feasible and they 

21 have to get these additional resources.

22 CHAIR MARKOWITZ: So, my question is 
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1 to what extent has this been done? And black 

2 lung program, the federal employees 

3 compensation -- and other parts of OWCP since 

4 it could be facilitated in EEOICPA?

5 MS. LEITON: So that is kind of what 

6 we're eluding to here. We have in our FECA 

7 program, it's something that they are starting. 

8 And hopefully this year they're going to start 

9 this.

10 We're going to try to piggyback on 

11 what they're doing, which is this two factor 

12 authentication process. And it costs a certain 

13 amount of money to do it per person or 

14 something.

15 I'm not as familiar with the details 

16 of exactly what the mechanisms for making it 

17 happen are. But I do know that I've spoken 

18 with them. We want to piggyback on it as soon 

19 as we see how it works for them, and then do it 

20 ourselves for our claimants.

21 I think it's a very valuable thing. 

22 In fact, Doug, you might have a little bit more 
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1 information about it.

2 MR. FITZGERALD: This is Doug 

3 Fitzgerald. Could you hear me? Yes, this is a 

4 challenge across government, not just for the 

5 energy program and OWCP. But Rachel's correct, 

6 the FECA program, the Federal Employees 

7 Compensation Program has been pursuing this for 

8 some time.

9 And one of the advantages FECA has, 

10 the Federal Employees Compensation Act program, 

11 has over energy is that they're dealing with 

12 federal workers. And so you can kind of 

13 allocate the work across federal agencies and 

14 give people user authentication authorities 

15 within federal agencies to grant access to the 

16 claims files.

17 You don't have that same ability 

18 when you're going outside our firewalls into 

19 the public. So it's going to be the kind of 

20 the forerunner for OWCP, but we still have the 

21 challenges of trying to create that two factor 

22 authentication process that can be done in an 
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1 affordable and secure manner in order to make 

2 sure that the PII in all these files is not 

3 going to be compromised.

4 CHAIR MARKOWITZ: So for people who 

5 are unfamiliar with two factor authentication, 

6 you probably actually are familiar or will soon 

7 be familiar because it's increasingly used 

8 where you enter your user name and password and 

9 then they, the company or agency sends you in 

10 email or text another password which you then 

11 have to enter. So there's two levels of 

12 entering into the system.

13 So comments or questions on this. 

14 Okay, so you know, it would be nice to know at 

15 future board meetings, I think it will be half 

16 of the future at the next board, it would be 

17 good to have some periodic very brief report 

18 back on progress on this so we know what is 

19 actually happening with this recommendation.

20 MS. LEITON: Absolutely.

21 CHAIR MARKOWITZ: Because the 

22 description makes it look like it would take an 
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1 awful long time, actually.

2 MS. LEITON: Yes. With any IT 

3 project, it's hard to quantify. And I think 

4 that the department and OWCP is going to be 

5 cautious in providing a specific timeline. 

6 Now, some of these things move a lot quicker

7 than we anticipate, and some of them take 

8 longer.

9 So I know that it's a priority for 

10 OWCP. I really want it to work and to happen 

11 because I think, you know, with the energy 

12 document portal, submitting things 

13 electronically has been a big help.

14 I think that this would be even a 

15 bigger help, we wouldn't have to be shipping 

16 case files through the mail. I mean, there's a 

17 lot of incentive for it. So hopefully it will 

18 happen sooner rather than later. But it's hard 

19 to quantify now, but we will provide updates.

20 CHAIR MARKOWITZ: Let's move on. So 

21 we're going to do Recommendation number 8 

22 because that's the way it's dealt with in the 
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1 DOL responses. And while Mr. Griffon is 

2 getting ready to read the response, let me just 

3 read the recommendation.

4 "We recommend that the entire case 

5 file should be made available to both the 

6 industrial hygienists and the contract medical 

7 consultants when a referral is made to either, 

8 and not be restricted to the information that 

9 the claims examiner believes is relevant. The 

10 claims examiner should map the file to indicate 

11 where relevant information is believed to be."

12 So, for the person operating the 

13 screen should go on to the next page. It's the 

14 first full paragraph, it beings with, "With 

15 regard." That's good.

16 MEMBER GRIFFON: Okay, and this is 

17 Mark Griffon, this is the Department of Labor's 

18 response. "With regard to providing the 

19 industrial hygienists and contract medical 

20 consultants with full access to the case file, 

21 we do not believe such access is appropriate 

22 for several reasons.
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1 "First, we believe there are 

2 potential challenges associated with industrial 

3 hygienists and contract medical consultants 

4 (CMC) developing their own set of facts after 

5 review of the file, thereby usurping the 

6 primary function of our claims examiners as 

7 finders of fact, and in particular, those facts 

8 that need to be presented to these consultants.

9 "In addition, claimants often submit 

10 voluminous amounts of medical documentation 

11 (sometimes thousands of pages) regarding all 

12 medical treatment that they've received during 

13 their lifetimes. Many of these documents are 

14 unrelated to the medical condition being 

15 claimed, or the reason for a referral to a CMC.

16 "While it is never the intent of a 

17 claims examiner to conceal information, it has 

18 been OWCP's experience that it is operationally 

19 inefficient, and often uneconomical, to supply 

20 superfluous documents to the CMC when only 

21 parts of the medical information is pertinent 

22 to the issue at hand (e.g. completion of an 
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1 impairment rating for an accepted lung 

2 condition.)

3 "Finally, when cases are referred to 

4 industrial hygienists, the claims examiners are 

5 seeking guidance on a particular set of 

6 circumstances.

7 "It would be inappropriate for an 

8 industrial hygienist to be required to sift 

9 through all of the various employment, exposure 

10 and medical documents in order to make his or 

11 her own determination regarding which documents 

12 are to be reviewed.

13 "It is the claims examiner's 

14 responsibility to determine the questions that 

15 are being asked of the specialist, and to 

16 provide them with the documents that are 

17 relevant to the issue of concern.

18 "Finally, it has been OWCP's 

19 experience that the contractors performing this 

20 work do not want to be required to sort through 

21 potentially thousands of pages of documents for 

22 each claim, most of which are not relevant to 
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1 the question being asked of them."

2 CHAIR MARKOWITZ: Okay, so comments? 

3 Dr. Cassano?

4 MEMBER CASSANO: This was a 

5 recommendation that came out of my 

6 subcommittee, and I have several issues with 

7 the response. First of all, your statement 

8 about the industrial hygienists and the CMC's 

9 developing their own facts.

10 I think what you want are the 

11 appropriate and relevant and necessary facts 

12 for a claim to be adjudicated properly to get 

13 to the proper people. The industrial 

14 hygienists and the CMC have a lot more 

15 experience in determining what those facts are 

16 in order to adjudicate the claim than the 

17 claims examiner.

18 I will also tell you that at 

19 Veteran's Affairs, that it is settled case law 

20 that the physician doing the exam or the claim 

21 gets the entire claims file and has to state 

22 that they have read the entire claims file. 
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1 That's Nieves-Rodriguez vs. Peake if you want 

2 to look at it.

3 I don't think energy employees 

4 should have less protection than veterans, and 

5 I am a veteran myself.

6 The other thing is, yes, some of 

7 these case files are 3,000 and 6,000 pages 

8 long. I've been through them. And that's the 

9 purpose of the claims examiner mapping them 

10 because then the industrial hygienist only has 

11 to go to the industrial hygiene information.

12 And then they have it at least 

13 available so that if they have a question or 

14 they think something's wrong, they can go back 

15 to the file and determine what really is going 

16 on.

17 I think that's what you really want 

18 to do, and there's all of this stuff that isn't 

19 procedure, it isn't law. It's just it's too 

20 hard to do, and by the way, we don't, you know, 

21 our CMCs don't want to do it. Well, then maybe 

22 they're not the right CMCs.
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1 But if you map the file and you need 

2 that information and you use that information, 

3 then I think you shouldn't have a problem 

4 because there is not another agency that has 

5 that problem with a physician or an industrial 

6 hygienist going through all the information. 

7 Thank you.

8 CHAIR MARKOWITZ: Dr. Welch?

9 MEMBER WELCH: Okay. Laura Welch. 

10 I think that the answer here is really 

11 interesting because in a way, you've summarized 

12 what I see as a conflict in approach between 

13 the way the Board, or maybe the occupational 

14 physicians on the Board and the industrial 

15 hygienists on the Board would approach a case, 

16 and the way EEOICPA approaches the case.

17 By saying that it would be 

18 inappropriate for an industrial hygienist to be 

19 required to sift through all the various 

20 employment, exposure, and medical documents in 

21 order to make his own determination regarding

22 which documents are to review.
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1 The role of the industrial hygienist 

2 is to go through the exposure, employment, and 

3 medical documents to determine relevant facts. 

4 So that's the conflict. You know, we see that 

5 that's what the industrial hygienist has to do 

6 is look at the available information.

7 You're saying the claims examiner 

8 does that first, and tells the hygienist what 

9 to look at, and we're saying you're likely to 

10 lose something in that process, particularly on 

11 -- well, this is just because I'm a doctor.

12 You know, on the medical side, we 

13 see that frequently where there's some useful 

14 information that may not be obvious unless 

15 you're trained to look for that information 

16 related to that exposure.

17 But I think, you know, I mean, I 

18 think there's some famous line that doesn't 

19 come to my mind right now, but it's an 

20 existential difference in opinion here, and I 

21 don't quite know how we get around it.

22 If the problem is the volume and the 
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1 time it would take for claims examiners to go 

2 through, and certainly if you're asking for an 

3 impairment rating, you don't necessarily, it's 

4 not a causation question so it's not as much 

5 information. So how do you get through that 

6 procedurally, we can work on that.

7 But we need to come to some 

8 understanding, or at least maybe I think the 

9 Board needs to make a firm statement that we do 

10 think it's the role of industrial hygienists 

11 and the CMC to go through the records to be 

12 sure that every relevant bit of information is 

13 being used in the determination.

14 CHAIR MARKOWITZ: Dr. Sokas?

15 MEMBER SOKAS: Now that we have, oh 

16 okay, it's on. Dr. Sokas. I want to second 

17 what Drs. Cassano and Welch, or third I guess 

18 what Drs. Cassano and Welch have said.

19 That for example, just as an 

20 example, one of the COPD claims that has maybe 

21 2,000 pages in it, you can kind of find 

22 actually some really interesting information 
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1 back in the medical logs from, you know, 30 

2 years ago when they were being seen at the 

3 clinic, and you've got all that information.

4 And then all of a sudden there's a 

5 two week hospitalization for respiratory 

6 problems and then follow up issues. And that's 

7 just scribbled in these little notes that don't 

8 necessarily have the hospital record even 

9 attached to it, if that wasn't found.

10 So there clearly are times when it's 

11 needed. Now again, maybe not for impairment, 

12 and maybe not for home care, you know, 

13 certification. So that would limit the 

14 workload. But absolutely for causation, 

15 absolutely for causation.

16 Any physician who reviews a chart 

17 for causation and doesn't have access to 

18 everything is really blinkered and challenged, 

19 I think.

20 CHAIR MARKOWITZ: Dr. Boden?

21 MEMBER BODEN: So let me preface 

22 this with a warning, I am not a lawyer. One 
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1 statement in the response was that you seem to 

2 believe that allowing the industrial hygienist 

3 or the CMC to see the whole file would 

4 undermine the claims examiner's role as a 

5 finder of fact.

6 I don't think that's the case at 

7 all, and I'm not quite sure why that's in 

8 there. If you have a judge on a case, the 

9 judge is the finder of fact. That doesn't mean 

10 that an expert can't look at whatever they 

11 think is appropriate and provide expert opinion 

12 about that.

13 So it just seems to me that that 

14 argument doesn't hold water. I'm not quite 

15 sure why it's in there.

16 CHAIR MARKOWITZ: Ms. Pope?

17 MEMBER POPE: Duronda Pope. I just 

18 wanted to echo what everyone has already said. 

19 In particular, I was on the subcommittee with 

20 Dr. Cassano.

21 We identified these issues with the 

22 claim examiner mapping out the different facts 
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1 that were within the case, and we understand 

2 that the cases might be overwhelming in terms 

3 of the volume.

4 But I think it's essential that this 

5 information goes directly to the CMC because of 

6 the fact is that the statement here said that 

7 they don't want to be doing the work of going, 

8 required to do the work I think is their 

9 obligation. It's their job to go to sort 

10 through that information.

11 I mean, the claimant's health, you 

12 know, depends on it. And I think it's an 

13 obligation for them to go to sort through that 

14 information.

15 CHAIR MARKOWITZ: Dr. Cassano? Oh, 

16 I'm sorry, Ms. Vlieger, was your --

17 MEMBER CASSANO: Yes, just to, I 

18 just want to clarify that I think you're 

19 correct. For impairment ratings or for home 

20 care or something like that where all of that 

21 is already established.

22 But I can't tell you how many times
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1 when I have gotten a statement of case from a 

2 claims examiner, and it says this, that, and 

3 the other thing, and I go through the claims 

4 file and I go oh, this person also worked here, 

5 this person also did this job, this person also 

6 did such and such. And oh, they had this 

7 medical problem while they were actively 

8 working, or on active duty in my case.

9 I can't tell you how many times that 

10 happens. And then when I write my medical 

11 opinion, include that. And the case is 

12 accepted because of that. And sometimes it 

13 works in reverse too.

14 If, you know, I see something where, 

15 you know, somebody has done something outside 

16 of covered work, that obviously is more 

17 relevant, and I include that because the claims 

18 examiner has not.

19 So I don't see the Agency's problem 

20 with this, I really don't.

21 CHAIR MARKOWITZ: I'm sorry, before 

22 you go, Ms. Vlieger, can you just clarify? You 
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1 said you've reviewed cases, claims examiner. 

2 Is that in the DOL EEOICP system, or is that in 

3 a different system?

4 MEMBER CASSANO: (Off microphone 

5 comments.)

6 CHAIR MARKOWITZ: Okay, fine. Ms. 

7 Vlieger?

8 MEMBER VLIEGER: First of all, I 

9 want to say that I deal with a large number of 

10 claims examiners and a large number of hearing 

11 examiners in what I do in my advocacy. And I 

12 respect many of them, most of them.

13 However, instead of thinking that 

14 these are finders of facts, I'm finding that 

15 they are filters of facts. And many of the 

16 most pressing and imminent things that should 

17 be going to the IH and the CMC are left on the 

18 cutting room floor.

19 That, when you're dealing with a 

20 worker population that is most likely not 

21 college educated and does not understand that 

22 that is relevant and it should have been in the 
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1 file, and then they're dismayed when they are 

2 provided with what they think and what indeed 

3 has been relevant facts, and they are ignored, 

4 pushed aside.

5 Said again, you did not provide, you 

6 did not complete your burden of proof. So I 

7 find that when we have all of this information 

8 in the file, particularly nuclear chemical 

9 operators, and people think that that's 

10 somebody like Homer Simpson sitting in a back 

11 room pushing buttons, when in fact they're in 

12 the field and all these chemicals.

13 So a referral goes to an IH or a CMC 

14 that's limited to three to seven chemicals that 

15 are the most innocuous things among the entire 

16 up to 3,000 chemical list on the SEM because 

17 that's what the SEM is because it's already 

18 been filtered for them.

19 And we've already admitted, the SEM 

20 is inaccurate, incomplete, and inconsistent. 

21 Yet, that is the rationale why it's sent. And

22 then you get GIGO, garbage in, garbage out.
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1 You get a domino effect by claims 

2 examiners saying well, this is what I can send, 

3 and so the industrial hygienist looks at it and 

4 says hey, part of my contract, I can only look 

5 at what you've sent me, I agree. That' doesn't 

6 cause anything. Domino effect.

7 It goes to the CMC. CMC says well, 

8 I'm not going to contradict an IH. They must 

9 know what they're talking about. So then we 

10 get a domino decision. Oh no, this condition 

11 is not related to work.

12 So instead of limiting the CMCs in 

13 what they can do, because they're intelligent 

14 people, I believe they're forced to be filters 

15 of fact instead of finders of fact.

16 CHAIR MARKOWITZ: If I could make a 

17 comment, John. So you know, I have a question 

18 for the group. It would be a cost to giving a 

19 whole case file to the IH and the CMC to look 

20 at. And I don't mean a financial cost. There 

21 is that too, but that's not of our concern.

22 Which as to do I think with 
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1 efficiency of the operation. And you may say 

2 it's less important, but at least we need to 

3 put it on the table and have it out there and 

4 discuss it. I would like to hear DOL's 

5 opinion.

6 But there are presumably some cases 

7 that the claims examiner doesn't refer to the 

8 IH or the CMC. And that CE feels she or he has 

9 enough information on hand to make that 

10 decision, deny or approve.

11 Well, should that case also go to 

12 the CMC or IH because the CE could easily have 

13 missed important information if the scenarios 

14 we're proposing here are accurate.

15 So should it be then that every

16 single claim goes to the IH and the CMC because 

17 we don't really believe that the CE isn't 

18 capable of appropriately finding or asserting 

19 the facts.

20 But anyway, so that's one issue, so 

21 that every claim would go to the IH CMC. And 

22 if not, then which ones. And then what does 
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1 that do to the operation of the system.

2 And so I think, and I think Ms. 

3 Leiton can potentially probably provide more 

4 about the impact on the efficiency. But it 

5 ought to be a consideration and a concern of 

6 the Board. Dr. Dement?

7 MEMBER DEMENT: I want to defer to 

8 Dr. Cassano.

9 MEMBER CASSANO: I think, Steve, the 

10 only ones that would go to the CMC are the ones 

11 that the claims examiner is going to ask the 

12 CMC for an opinion on.

13 So if the claims examiner can 

14 adjudicate the case appropriately and award the 

15 case, then -- they can't hear? And award the 

16 case, then there's no reason for it to go to 

17 the CMC.

18 But if they have a question that's 

19 going to go to the industrial hygienist or the 

20 CMC, then those are the cases that need, where 

21 they need to have all of the information.

22 That's the same in the system I work 
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1 in. You know, there are lots of claims that 

2 are approved at the claims examiner's level, 

3 but then others have to go to an MD or further.

4 CHAIR MARKOWITZ: So just a 

5 clarification. You're saying that all claims 

6 that are denied by the claims examiner without 

7 involving the CMC --

8 MEMBER CASSANO: Only if causation 

9 is the reason for denial.

10 MEMBER SOKAS: That's right because 

11 there's a lot of other reasons to deny. They 

12 weren't working during the time period, et 

13 cetera. So it's not all the cases, it's just 

14 those specific --

15 MEMBER CASSANO: Causation.

16 CHAIR MARKOWITZ: Okay. Dr. Dement?

17 MEMBER DEMENT: I guess just a 

18 follow up response. I think the intent of this 

19 recommendation actually links back with many of 

20 the other recommendations with regard to 

21 enhancing the occupation history questionnaire 

22 to get more specific information to allow the 
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1 industrial hygienist to directly speak with the 

2 claimant, and in this case, having the 

3 industrial hygienist to have all the facts 

4 before them to make a determination.

5 So you know, we can look at them 

6 independently, but I think it's more of our 

7 recommendations collectively that that process 

8 be more information intense for those 

9 individuals making the decisions, or making 

10 recommendations.

11 CHAIR MARKOWITZ: Dr. Welch?

12 MEMBER WELCH: We were, we discussed 

13 who got to go first. This is Laura Welch. I 

14 just would also add that overall, I think one 

15 of the wishes of the Board is that there be 

16 more process evaluation and quality assurance.

17 So that question of if you initially 

18 started with the case files being sent when a 

19 CMC or industrial hygienist was asked to 

20 consult, there could also be a QA review of 

21 case files that where there's a determination 

22 made by the claims examiner without additional 
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1 input from.

2 And on a regular basis to see if 

3 that is working well, if additional training 

4 needs to be made, you know, so that one could 

5 then adjust this process going forward.

6 CHAIR MARKOWITZ: Mr. Whitley?

7 MEMBER WHITLEY: Rachel can help me 

8 here, but the claims examiner really can't say 

9 this claim's exempt. The claims examiner makes 

10 the recommendation and then it goes on up the 

11 line to be.

12 I've seen many claims that the claim 

13 examiner made a recommendation for that claim 

14 to be accepted, and then they get a letter that 

15 says it's been denied. On final adjudication.

16 CHAIR MARKOWITZ: So do you want to, 

17 do you have a comment on Mr. Whitley's, because 

18 that's a different kind of comment. Do you 

19 want to comment on that, and then we'll move on 

20 to other other comments from the Board?

21 MS. LEITON: Sure. If a case is 

22 accepted at the recommended decision level and 
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1 it goes to FAB, to Final Adjudication Branch, 

2 they would never automatically, they wouldn't 

3 deny it. It would be remanded for additional 

4 information.

5 And then there would be a new 

6 recommendation made, and then it would go back 

7 to the final adjudication branch with a new set 

8 of appeal rights.

9 And I just, one other word about the 

10 claims examiners, you know, I understand the 

11 Board's concerns with the fact that they're not 

12 doctors and they're not scientists, but they 

13 are trained in how to evaluate medical and 

14 scientific evidence.

15 They're not just, you know, I mean, 

16 there's a lot of training. A lot of these 

17 examiners have been doing this kind of work for 

18 30 years plus. So I just want to make sure 

19 they're not being dismissed as they don't 

20 really know what they're doing because they 

21 have been trained in the evaluation of 

22 evidence.
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1 A lot of our hearing reps are 

2 lawyers, and not to dismiss what you guys are 

3 saying, I just want to make sure that that's 

4 also clear is that they're trained. They do 

5 understand how to evaluate medical evidence. 

6 They issue very thorough recommendations. And 

7 then there's a right to an appeal.

8 But I will address the other section 

9 that you wanted me to address later, or you 

10 want me to go ahead and address that now in 

11 terms of the burden it would put the process 

12 for if all cases for denials went to a CMC or 

13 IH.

14 CHAIR MARKOWITZ: You might as well 

15 make that comment now, and then we'll continue 

16 the discussion.

17 MS. LEITON: Okay. So I think what 

18 you're suggesting, and from what I'm getting 

19 from all the comments is you're not suggesting 

20 every case go to a CMC and IH. If it's because 

21 we don't have a diagnosis or we don't have, you 

22 know, there's no survivorship eligibility, 
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1 there's no evidence of employment, obviously 

2 those are not going to go to an IH or a CMC.

3 One thing that we do try to make a 

4 point about is to go to the treating first, 

5 because if we go to a CMC for everything, then 

6 we are accused of being the people who just 

7 have government doctors making decisions for 

8 us, and we don't want that.

9 So the first opportunity is going to 

10 go to the treating physician. Oftentimes, 

11 treating physicians don't have the information, 

12 as you all have already discussed.

13 So at the end of the day, what 

14 you're saying is we go to treating, we do 

15 whatever we can, and we're still looking at a 

16 denial. At that point, we go to an IH and/or a 

17 CMC depending on the circumstances, and 

18 determine.

19 That would be, it would create some 

20 delays in our processes in terms of how quickly 

21 a decision is made. And you know, there's 

22 always going to be criticisms for that process. 
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1 Well, you know, are the CMC's issuing decisions 

2 properly, et cetera, et cetera.

3 But you know, we could evaluate that 

4 if that were a recommendation you were to make 

5 in terms of what we think the impact would end 

6 up being on our claims process, on the 

7 timeliness of our decisions, and that sort of 

8 thing.

9 And I did just want to also mention 

10 that our government IHs, we have two of them, 

11 do have access to the entire case file. If 

12 there's a question that arises from one of the 

13 contract IHs, they can ask it and they can 

14 provide that information.

15 And at any time, if a CMC, whether a 

16 contractor or a fed has a question, they can go 

17 back to the claims examiners. I just wanted to 

18 make sure that that was clear as well.

19 CHAIR MARKOWITZ: Thank you. Dr. 

20 Friedman-Jimenez?

21 MEMBER FRIEDMAN-JIMENEZ: One of my 

22 many hats is as an impartial specialist 
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1 consultant for the New York State Workers 

2 Compensation Board where I make the final 

3 adjudication when there's a disagreement 

4 between the treating physician and the 

5 independent medical examiner.

6 And in this process, I wouldn't even 

7 think of taking a case where I did not have 

8 access to all of the information. And 

9 frequently I see that sometimes the treating 

10 physician doesn't have access to exposure 

11 information, for example, and makes an 

12 incorrect judgment because of that.

13 I don't see the problem in providing 

14 access to the information if it's needed. That 

15 doesn't obligate the CMC or the IH to review 

16 every single page of thousands of pages of 

17 documents, but it makes it possible for them to 

18 answer a little hypothetical question that 

19 comes up when they're thinking about how could 

20 this have been caused or what, the finder of 

21 fact is important but it's not clear always 

22 what facts need to be found.
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1 And sometimes this depends on a 

2 mechanistic hypothesis of how the causation 

3 occurred. And this fact may be something 

4 that's important to decide the case, but is not 

5 something that a claims examiner, or even a 

6 treating physician would have thought of as 

7 something that's important to find out.

8 So I think that the access to the 

9 information would be important for the CMC and 

10 the IH in making these causal judgments. So I 

11 want to weigh in on that side. So, thanks.

12 CHAIR MARKOWITZ: Dr. Boden?

13 MEMBER BODEN: So, it does seem like 

14 there's tension between this sort of efficiency 

15 point of view, which is what DOL has described, 

16 and the can the person who's the more expert 

17 get the full picture so they could look for 

18 things that might not otherwise be directed at 

19 them.

20 And it does seem to me number one, 

21 that indexing the file, or whatever we called 

22 it, is actually a way to help the CMC or the 
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1 industrial hygienist avoid going through the 

2 whole file if they don't feel like doing it, on 

3 the one hand. And there are probably other 

4 things you could do.

5 I seem to remember a number of files 

6 that had, you know, 1,000 page medical record 

7 that was duplicated in the file. And 

8 certainly, I don't think any of us would object 

9 if the second or third copy of the 1,000 page 

10 medical record were not sent on.

11 MEMBER BODEN: I want to go back to 

12 a question for Steven -- Dr. Markowitz. So, I

13 wasn't quite sure what the point of your 

14 hypothetical was about sending everything to 

15 the IH and the CMC.

16 Was it to raise the question about 

17 how much do we trust the claims examiner to 

18 make decisions about what goes and what doesn't 

19 go, or was it to point out that that's the 

20 logical, you know, end point if you really take 

21 this to the extreme, which I don't think any of 

22 us were thinking about doing.
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1 CHAIR MARKOWITZ: No, I was trying 

2 to get the issues out on the table.

3 MEMBER BODEN: Okay.

4 CHAIR MARKOWITZ: I was trying to 

5 broaden the conversation --

6 MEMBER BODEN: Right.

7 CHAIR MARKOWITZ: -- beyond just 

8 let's consult the experts.

9 MEMBER BODEN: To --

10 CHAIR MARKOWITZ: Look and consider 

11 the impact on the system.

12 MEMBER BODEN: Right. Okay.

13 CHAIR MARKOWITZ: I didn't have an 

14 opinion about it.

15 MEMBER BODEN: You didn't have an 

16 opinion. Right. So, but then we do have to 

17 think about not only the costs in terms of the 

18 DOL and their consultants, but we also have to 

19 think about the costs in terms of delay for the 

20 claimants.

21 CHAIR MARKOWITZ: Right.

22 MEMBER BODEN: So, if everything 
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1 goes out, then it's going to take longer.

2 CHAIR MARKOWITZ: So, Ms. Leiton has 

3 her hand raised. You can speak, but I have a 

4 question related to this perhaps you can answer 

5 at the same time.

6 I read this language where you use 

7 the word "usurp," "that the CE's prerogative to 

8 be the finder of fact would be usurped." It's 

9 a strong word. 

10 And so, what happens now when the 

11 claims examiner sets out facts and then 

12 consults with the IH or the CMC, and the IH and 

13 CMC makes --- they weigh in on the questions, 

14 but also make observations about the facts and 

15 give that feedback to the CE?

16 Does the CE then change the facts, 

17 which they should because they now have an 

18 expert weigh-in, perhaps an unintended expert 

19 weigh-in on those facts?

20 MS. LEITON: Okay. So, that 

21 question goes to what Dr. Boden was talking 

22 about with regard to the finders of facts, and 
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1 the lawyers are the ones that weighed in 

2 heavily on this particular issue.

3 So, you know, there is a certain 

4 chain of custody that our lawyers refer to when 

5 they talk about the claims examiners making the 

6 decision on this, but I -- at the same time I 

7 want to point out that, you know, oftentimes 

8 the entire medical case evidence does go to the 

9 CMC.

10 And early on in our program, in 

11 every situation we sent all of the medical 

12 evidence to the CMC.

13 As the program has moved forward, 

14 you have Part B, you have Part E. You've got a 

15 whole subsection of decisions that were made 

16 about a cancer over here or a --- and then you 

17 have another condition over here.

18 We want to make sure the focus on 

19 something that's already been accepted doesn't 

20 --- isn't something that the CMC is going to be 

21 reviewing.

22 So, you know, in some cases, like we 
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1 said, with thousands of pages, the relevancy 

2 isn't --- we're not trying --- the claims 

3 examiners aren't trying to say, "Oh, well, you 

4 know, we want to try to hold back information 

5 that might be relevant."

6 And I understand everybody's 

7 argument that, well, the CE doesn't always know 

8 what's relevant, so it should all go to the 

9 CMC.

10 I think that sometimes there are 

11 things that just have already been decided, 

12 already been adjudicated, it can be 

13 incorporated and so if we accepted this case 

14 under Part B for X, Y and Z. That being said, 

15 if a CMC wants more information, we're happy to 

16 supply it.

17 With regard to indexing, we do index 

18 our cases. We don't have a way to provide that 

19 yet to physicians or contract industrial 

20 hygienists in an index format where they only 

21 see the index.

22 That's not something that we're 
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1 capable of doing yet and that is something that 

2 we contemplate for the future.

3 I don't want to say absolutely yes 

4 right here, but I think, you know, it is a 

5 doable thing. And so, it's really -- I just 

6 want to make sure that -- a lot of times 

7 everything will go.

8 If we have a new case file and we're 

9 sending it to a CMC and we've got, you know, a 

10 small pile of documentation and we give every 

11 single piece of medical, we will.

12 The OHQs can go to the IHs. The 

13 government IHs have access to the whole case 

14 file. So, there are combinations of getting 

15 this information to the appropriate 

16 specialists.

17 And your question, Dr. Markowitz, I 

18 might have gotten lost in your question. I'm 

19 sorry.

20 CHAIR MARKOWITZ: That's fine. Let 

21 me try to focus it on --

22 If the CE finds facts and then has 
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1 questions, sends it to the CMC, and the CMC 

2 answers the questions, but also says, "I need 

3 to amend your facts because the facts don't 

4 represent the case," and then gives that 

5 feedback to the CE, does the CE then amend the 

6 facts?

7 MS. LEITON: The CE -- it depends on 

8 the circumstances. I mean, you know, a lot of 

9 times the CE is going to be making the coverage 

10 determinations.

11 So, if a claimant were to say --- if 

12 there's some conflict with regard to whether an 

13 employee was at a particular site, that sort of 

14 thing, a CMC coming back and saying, "Well, the 

15 claimant said, X, Y and Z," we have to verify 

16 that against all the other evidence in the case 

17 file.

18 However, we have had circumstances 

19 where the CMCs have come back and said -- first 

20 of all, I don't think -- well, we've had it go 

21 both ways.

22 Sometimes they say, "I don't think 
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1 he had this diagnosis, and I don't think I 

2 should be issuing a decision on causation 

3 because of this diagnosis."

4 And then we have to go back and say, 

5 "Okay," and oftentimes we'll follow back up 

6 with that physician and say, you know, "This is 

7 the evidence we relied on. If it, you know, to 

8 come to this determination. Please help us 

9 understand this."

10 If they say, "Well, I think this 

11 other condition is implicated here," we 

12 definitely review whatever that doctor says and 

13 we'll revise our --- I mean, our statement of 

14 accepted facts is what we send to them.

15 Our recommended decision is what we 

16 actually make a decision on at the end of the 

17 day. And that's going to incorporate anything 

18 that we've received from a CMC or a treating 

19 physician.

20 So, yes, we will revise our 

21 determination at the end of the day based on a 

22 CMC especially if it's going to impact a case 
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1 in a positive way.

2 It becomes more problematic, for 

3 example, if we say, "We've already accepted 

4 this diagnosis in a final decision," and this 

5 doctor says, "I don't think he was ever 

6 diagnosed with that."

7 Oftentimes we're not going to go 

8 back and revisit that just because we've 

9 already made a positive determination on the 

10 case.

11 So, it gets a little tricky in those 

12 circumstances, but we definitely consider it 

13 particularly when it might affect whether a 

14 case could be accepted versus denied.

15 CHAIR MARKOWITZ: Thank you.

16 I don't know who's next. Who wants 

17 to speak next? 

18 Dr. Friedman-Jimenez.

19 MEMBER FRIEDMAN-JIMENEZ: Just a 

20 very quick comment.

21 In the meantime while you're 

22 developing an indexing system, a very quick and 
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1 dirty way to find what you're looking for in a 

2 long medical record is a searchable PDF file.

3 I just want to make sure that the 

4 PDF files are all going to be searchable 

5 because there are different kind of PDF files.

6 As long as it's searchable, it's 

7 actually relatively easy to find what you're 

8 looking for in a 2,000-page document. If 

9 they're not searchable, it's a problem. 

10 MS. LEITON: Well, we actually index 

11 them as the documents come in. So, we have an 

12 index system. So, when a piece of a record 

13 comes in, we'll just document it as this is 

14 medical. We can index it right there as 

15 medical.

16 When you talk about PDFs, we 

17 actually have TIF files. And so, when it comes 

18 to searching the actual document, that's not 

19 something, unfortunately, that --- we followed 

20 the -- it's an OWCP-wide kind of a system. And 

21 so, there are certain issues where PDFs haven't 

22 been part of our system. But in terms of 
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1 indexing, that's completed at the front end.

2 CHAIR MARKOWITZ: Dr. Welch.

3 MEMBER WELCH: I certainly 

4 appreciate what you're saying about how if an 

5 industrial hygienist or a CMC has a question, 

6 they can always go back to the claims examiner, 

7 request more information.

8 But I guess what I've seen in ---

9 the process I've seen in claims that I've 

10 reviewed is that the --- what the CMC will 

11 receive is a statement of accepted facts. 

12 And the whole process, the way the 

13 statement of accepted facts is sent and also 

14 the process reviews that you've done, the 

15 message to the CMC is, answer these questions 

16 that I have for you. They're very specific 

17 questions that I have for you and I want you to 

18 answer them.

19 The message is not, if you have any 

20 other questions or if something doesn't seem 

21 right to you or if there's something else you'd 

22 like to look at, let me know.
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1 And so, even though that opportunity 

2 is there, I don't think that really solves the 

3 problem that we have been talking about.

4 I mean, it's not --- it's great that 

5 it is --- and even telling the CMCs or 

6 industrial hygienists, I think it's -- with the 

7 industrial hygienists, it's a little bit easier 

8 if we have this process where you say, "If you 

9 want more exposure information, let the claims 

10 examiner know and we can facilitate a 

11 discussion with the claimant."

12 That, I think, is easier. It's 

13 harder to the CMC to say, "If you want more 

14 medical information, let us know," because the 

15 CMC wouldn't know what's in the file that they 

16 haven't seen.

17 So, the process of being able to go 

18 back and ask for more information is good, but 

19 it doesn't totally fix the problem.

20 CHAIR MARKOWITZ: Dr. Cassano.

21 MEMBER CASSANO: Yeah. I just 

22 wanted --- Rachel, I don't think anybody here 
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1 believes that the claims examiner's job is 

2 easy.

3 I don't think anybody here believes 

4 that they are not well-trained at the level 

5 they need to be trained at.

6 And I don't think anybody here is 

7 saying that they are not conscientious or 

8 trying to hide information.

9 I think the issue is -- and I think 

10 we've all seen it whether it's in reviewing 

11 cases or in other areas such as Dr. Jimenez and 

12 my expertise, is that many times because the 

13 unique expertise is not there, the questions 

14 that are asked are not actually the right 

15 questions to be asked.

16 And when somebody with more 

17 expertise in that area looks at a claims 

18 folder, they say, "Oh, no, we need to go back 

19 up and go to this exposure and develop it this 

20 way."

21 And I think, again, it becomes a 

22 learning experience for the claims examiner. 
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1 It's something that can be developed as 

2 training documents as to why, you know, there's 

3 a particular exposure/medical outcome link and 

4 I think it just improves the process.

5 I know that, you know, initially a 

6 claim might be slowed down by that. Nobody is 

7 saying that everything should go or even all 

8 the denials at this point should go. I think 

9 the denial issue can take place in the audit 

10 system somehow.

11 But if the claims examiner has a 

12 question for either the IH or the CMC, they 

13 should just have that information available to 

14 them because, quite frankly, from an efficiency 

15 perspective, it's a lot less efficient to have 

16 a claim keep coming back on appeal or to have 

17 it come back three years later as a newly18 opened claim with new medical information. 

19 It's much more efficient to get it done right 

20 the first time.

21 CHAIR MARKOWITZ: So, I have a 

22 question -- Steve Markowitz.
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1 If you have multiple finders of 

2 facts, you have the CE and you have the IH and 

3 you have the CMC, multiple finders of facts, 

4 how are differences resolved? What's the 

5 hierarchy?

6 Because the current system, the CE 

7 is in the catbird seat and then they use the 

8 expert resources and, obviously, use them for 

9 their expertise, presumably, most of the time 

10 correctly. But if you have multiple finders of 

11 facts, how do you resolve differences?

12 Dr. Sokas.

13 MEMBER SOKAS: Well, so, I mean, I 

14 would phrase it differently. The experts are 

15 providing recommendations. The CE and the 

16 final adjudication board makes that 

17 determination. So, that's how that happens.

18 The real question -- and, again, I 

19 want to echo what Tori was just saying -- is 

20 that we fully understand that the expertise of 

21 the CE exceeds that of any of the physicians in 

22 terms of the regulatory aspects of the process, 
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1 of the statutory requirements, of the language 

2 being used, of what, you know, the different 

3 terms mean. I mean, there's no question about 

4 that.

5 But if the CEs were -- and that for 

6 most of the cases, the CEs can make the 

7 determination. But if the CEs were trained to 

8 the point of not needing CMCs, why are you 

9 spending money on CMCs, is the question.

10 So, if you're going to spend the 

11 money on a CMC, you may as well get the full 

12 benefit of that, which is having someone who's 

13 really coming from a different perspective able 

14 to look at it in a different way.

15 And then providing whether or not it 

16 then gets used may not be relevant, may have 

17 been to something that, you know, this --- but 

18 at least have the information there.

19 CHAIR MARKOWITZ: Dr. Boden.

20 MEMBER BODEN: So, in a way, this is 

21 a minor technical point, but it's also a 

22 troublesome one to me.
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1 If these files --- and I understand 

2 this is a legacy issue for you --- are in TIF 

3 format, that means that the CEs are going to 

4 have a hard time looking for stuff, too, 

5 because they're not going to be searchable.

6 So, I think that's an efficiency 

7 problem that the Department might consider if 

8 there were a simple technical fix to it, and 

9 there might well be. I'm not an expert in that 

10 area.

11 But certainly when --- if a large 

12 file is sent to a consultant, either medical or 

13 IH consultant, either medical or IH consultant, 

14 it is a --- when I got to look at those files, 

15 the first thing I did was to make them in PDF 

16 format and then to use optical character 

17 recognition to make them searchable.

18 I'll bet I'm not the only one who 

19 did that. So, having that available, I think, 

20 is just sort of a simple technical fix that 

21 might be valuable both to the CEs and to the 

22 consultants.
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1 CHAIR MARKOWITZ: Dr. Silver.

2 MEMBER SILVER: Ken Silver. A 

3 question for Dr. Cassano.

4 Is there a difference between 

5 mapping and indexing? I have the impression 

6 from your bringing it up ---

7 MEMBER CASSANO: It's really no 

8 different other than --- see, we've had the 

9 benefit of seeing how they index their files in 

10 their electronic system.

11 So, the only difference with mapping 

12 and indexing is a lot of times in a flat file, 

13 all of the industrial hygiene information is in 

14 different areas.

15 So, what might be useful is to put 

16 it all in one area, map that area in this way 

17 and index it to that area rather than saying 

18 "page 15 is this exposure, and page 28 is that 

19 exposure, and page 573 is, you know, something 

20 else."

21 There's a very slight difference, 

22 but indexing is as slight as mapping.
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1 MEMBER SILVER: Well, I did have a 

2 couple of other comments. I think a 

3 distinction between "training" and "education" 

4 is in order here.

5 The claims examiners have certainly 

6 been trained to the required regulations and 

7 the procedures. And from the get-go, I thought 

8 they needed a career ladder so that they could 

9 progress along in this field and truly become 

10 the peers of the IHs and the physicians.

11 And the occupational 

12 epidemiologists, we spent time together in 

13 graduate school learning about chemical 

14 causation and there are certain concepts that 

15 may not always be reflected in the regulations 

16 and emphasized in the procedure manual.

17 Dr. Sokas referred to a temporal 

18 relationship between a hospitalization years 

19 before and the onset of chronic disease later.

20 I'll mention it again, a classic 

21 teaching example is an acute sign like a skin 

22 rash followed years later by damage to the 
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1 internal epithelial cells of the lungs, for 

2 example and I'm not sure that the claims 

3 examiners would know what they were looking 

4 for.

5 There's also the ethical issue. I 

6 didn't really dwell on it, but when I reviewed 

7 some of these files, I couldn't help but notice 

8 people were jammed up in the claims system so 

9 long they lost their home, their marriage fell 

10 apart, new mailing addresses for the claimant. 

11 When the doctors read these files, 

12 they probably see people going back for 

13 repeated exams for the wrong disease and 

14 probably even the wrong procedures for the 

15 wrong disease, which raises the ethical issue 

16 of performing due diligence, you know, saying 

17 statistics or, in this case, claims files of 

18 people with their tears wiped away.

19 So, we fall back on our not just 

20 education, but our training and ethics in this 

21 field and we want to look at everything to make 

22 sure the first person gets a high level of 
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1 determination. Oh, and Homer Simpson became a 

2 safety thingamajiggy.

3 CHAIR MARKOWITZ: Ms. Vlieger.

4 MEMBER VLIEGER: Yes. Faye Vlieger.

5 I agree that there's a difference 

6 between training and education. It's not 

7 exclusive to the claims examiner, though. In 

8 the number of claims that I see, there's a tiny 

9 percentage over the entire program.

10 And unfortunately, it appears that 

11 when there are changes in the procedure manual, 

12 and I know there was an extensive training push 

13 from all the claims examiners to be brought up 

14 to date, that information is not, for whatever 

15 reason, always in place with all the people 

16 adjudicating the claims.

17 From the CE, to the IH, and the CMC, 

18 I wonder what the process is to bring them up 

19 to date on the changes in the procedure manual, 

20 the changes in the presumptions, bulletins and 

21 circulars that come and go, and then the 

22 challenges that do come from policy calls.
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1 In recent claims that I have seen, a 

2 number of claims for lung conditions when it 

3 went to the CMC, the smoking history was 

4 attributed to the cause of the disease and 

5 their opinion was that the disease had no basis 

6 in occupational exposure.

7 These claims were at the hearing 

8 level and I have yet to --- I think they're 

9 going to be remanded, but the hearing officer 

10 also, you know, looked at it and said, "Yes, 

11 it's a valid point."

12 So, I know that claims examiners are 

13 getting things through their routine training. 

14 I don't see it happening at the IH and the CMC 

15 levels because when these errors are repeated 

16 over and over again in at least four hearings 

17 I've had in the last four weeks and I see a 

18 tiny percentage of the claims, I have to 

19 question how many other times is it happening 

20 and the claimants have no idea of their rights 

21 to rebut this false information.

22 CHAIR MARKOWITZ: This is Steve 
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1 Markowitz.

2 Is there a question in there? And 

3 the question I heard, I think, was whether the 

4 CMCs and the IHs learn, understand, are updated 

5 on the procedure manuals and policies, et 

6 cetera, of the program.

7 Is that a question ---

8 MEMBER VLIEGER: That's the 

9 question.

10 And then the other question is, I 

11 know --- I see no effective auditing before 

12 these are sent on a recommended decision to 

13 deny.

14 And so, we're --- and it's a long 

15 process to get to their, you know, this is 

16 months to get to that thing --- to get to that 

17 hearing in front of the hearings examiner with 

18 the final adjudication branch.

19 And it appears to me that there's 

20 not effective training going on and that 

21 there's not effective auditing going on of the 

22 changes that have been made, the current 
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1 changes that should not be popping up in these 

2 decisions.

3 So, my question, what is the 

4 training for the CMCs and the IHs for the 

5 changes that are made, to bring the program up 

6 to speed?

7 CHAIR MARKOWITZ: So, I'm going to 

8 make a comment on that and then ask Ms. Leiton 

9 to address that.

10 I suspect some of the reluctance to 

11 diffuse the function of the finders of facts is 

12 that the CEs are steeped in the program and the 

13 procedures and the policies and they really --

14 they get the program.

15 And my sense is the external 

16 industrial hygienists and CMCs probably don't 

17 because -- for a number of reasons. One is 

18 they're not called upon and they're not 

19 internal to the program. They're external 

20 experts.

21 And that part of the reluctance to 

22 diffuse the finder of fact function to them is 
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1 they don't understand the rules of the program 

2 that are relevant to the finders of fact.

3 So, that's a comment or is it a 

4 question, but, Ms. Leiton, if you could just 

5 address that?

6 MS. LEITON: Sure. I think -- well, 

7 when it comes to the IHs, we have our internal 

8 IHs -- and you did make a distinction there, 

9 Dr. Markowitz -- who are often in the middle of 

10 creating the new procedures. So, they're very 

11 aware of the new procedures.

12 When it comes to the training of our 

13 contractors on new procedures, whether it's the 

14 IH or the CMC, I think that's an area that I'd 

15 like to look at a little bit more closely 

16 before I make a comment on it given that the 

17 training itself is actually a contractual 

18 thing. But the amount of it, how often they're 

19 updated on new policies, I don't have that 

20 information right -- with me right now, but I

21 think it's a valid thing to look at.

22 When it comes to auditing -- well, 
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1 when it comes to the training of the claims 

2 staff, you know, we do have a process for 

3 training on new circulars as they come out, new 

4 bulletins as they come out.

5 Oftentimes management in the 

6 district office will consult with our policy 

7 and they'll conduct training on their own in 

8 the district offices for claims examiners.

9 With regard to audits, we do do an 

10 accountability review every year in every 

11 office, as you know, of the work that's being 

12 conducted and, you know, we change out what 

13 we're auditing depending on what the issues are 

14 that are most prevalent.

15 And, you know, we make that 

16 determination at the beginning of each year ---

17 fiscal year looking back.

18 So, for example, if we determine, 

19 and it may be something that we look at how the 

20 changes are implemented, what we've done, you 

21 know.

22 In coming years, we can look at the 
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1 specific --- when we're looking at case files 

2 since we pull them randomly, we can pull out 

3 what we want to make sure that we've looked at 

4 whether these policies and procedures have been 

5 incorporated. And a lot of time we do that 

6 anyway, but we can hone it in to specific 

7 topics.

8 So, meaning if there's an issue with 

9 whether or not this particular circular was ---

10 that was rescinded was actually conducted 

11 properly, we can look at that issue in our 

12 audits --- our annual audits.

13 So, I think that might have answered 

14 the questions that were brought up.

15 CHAIR MARKOWITZ: Yes. Dr. Boden.

16 MEMBER BODEN: Les Boden.

17 So, this is a little tangential, but 

18 something occurred to me when Ken was talking 

19 about training and education.

20 I don't know if the Department 

21 already does this, but I think it would be of 

22 value to actually have some professional 
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1 education on industrial hygiene and

2 occupational medicine specifically as it refers 

3 to particular exposures and diseases that the 

4 CEs are likely to come upon.

5 That is not to turn them into 

6 industrial hygienists or occupational 

7 physicians, but to give them a feeling that 

8 they are --- number one, a feeling that their 

9 ability to understand these cases is respected, 

10 and; number two, to give them --- allow them to 

11 have a little more insight into how industrial 

12 hygienists and physicians think about these 

13 things.

14 I know you do a lot of training on 

15 the sort of legal and procedural parts of their 

16 jobs, but I don't know if you actually have 

17 professionals come in to talk to them about 

18 decision-making and how occupational physicians 

19 or industrial hygienists think about these 

20 kinds of decisions.

21 MS. LEITON: This is Rachel Leiton.

22 Our industrial hygienists have gone 
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1 around to -- individually, personally and done 

2 training with our staff. The ones that are 

3 government IHs, they have done that in the 

4 past.

5 And I think that it's always a good 

6 thing and I would like to see more of it as 

7 well, you know, resources allowed.

8 And, you know, we have done that 

9 sort of thing where DOE has come, for example, 

10 not exactly what you're talking about, but DOE 

11 has come and provided us with their experts on 

12 a specific facility.

13 We'll talk about the history of the 

14 facility, what they did there, that sort of 

15 thing, and we do that every year. We try to do 

16 it at least three times a year with different 

17 facilities and I think that's been very 

18 helpful.

19 So, that sort of an expertise, 

20 whether it's a doctor or an industrial 

21 hygienist, I think it is very valuable and I 

22 appreciate your comments.
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1 MEMBER BODEN: And it might also be 

2 valuable because people have to deal with a lot 

3 of pulmonary disease, if an expert like Dr. 

4 Redlich were called in one afternoon and people 

5 had a professional education seminar about this 

6 thing.

7 And I think it would make them feel 

8 better about their work as well.

9 CHAIR MARKOWITZ: Other comments, 

10 questions?

11 Okay. Let's move on to 

12 Recommendation No. 7, which is that we --- and, 

13 Mr. Domina, I'm going to ask you to read the 

14 response, if that's all right. 

15 So, I should just parenthetically 

16 state that asking people to read and going 

17 around the table may or may not be the best 

18 system, we may want volunteers. But the reason 

19 I employed this as a default because sometimes 

20 I -- at Passover, the Jewish holiday, I run the 

21 service, the Seder, and we tell the story of 

22 the liberation of the Jews from Egypt, and I go 
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1 around the table and people read their section. 

2 So, that's where I got it from, but it may not 

3 be appropriate here.

4 In which case, I think we're going 

5 to move to volunteers. But in any case, Mr. 

6 Domina.

7 Now, "We recommend that the 

8 Department of Labor reorganize its occupational 

9 physicians into an office comparable in an 

10 organizational structure to the Office of the 

11 Solicitor of the Department of Labor with 

12 physicians organized in groups to support OSHA, 

13 MSHA, OWCP, and other units, as well as to 

14 provide overall support to the Department of 

15 Labor."

16 MEMBER DOMINA: Due to your 

17 rationale, I'd be more than happy to volunteer 

18 to read.

19 CHAIR MARKOWITZ: Thank you. And 

20 let's do it in English. You don't even have to 

21 do it in Hebrew.

22 (Laughter.)
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1 MEMBER DOMINA: Well, that would be 

2 kind of like Japanese. You won't understand 

3 that, either.

4 "The Board has recommended that a 

5 separate agency within the Department be 

6 established to provide medical advice to OWCP 

7 on the basis that it would help ensure quality, 

8 consistency, and objectivity.

9 "While OWCP appreciates the Board's 

10 recommendation regarding the provision of 

11 medical advice specific to the EEOICPA program, 

12 OWCP believes that further information needs to 

13 be provided to the Board for it to have a 

14 fuller understanding of the current structure 

15 OWCP has in place to provide medical advice to 

16 the EEOICPA program.

17 "In particular, OWCP will provide 

18 information on the role of OWCP's Branch of 

19 Medical Standards in Rehabilitation, BMSR, and 

20 the medical staffing of that branch, as well as 

21 the use of contract medical consultants and the 

22 process OWCP uses to review the reports of 
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1 these medical consultants.

2 "OWCP believes that following the 

3 exchanges of this information, some of which 

4 are already occurred, the Board will be in a 

5 better position to provide recommendation that 

6 is tailored specifically to the EEOICPA 

7 program."

8 CHAIR MARKOWITZ: Dr. Sokas.

9 MEMBER SOKAS: So that's, I think, 

10 an appropriate approach. It would be nice to 

11 have that information in the response as 

12 opposed to will be provided in the response, 

13 but the goal really was to make sure that a 

14 single physician was not in isolation and that 

15 the whole program wasn't held hostage to the 

16 fact that there was no physician there for X 

17 period of time.

18 So, the question about how many 

19 physicians are within OWCP and how does the 

20 Department ensure that within different 

21 agencies there is the ability, for example, to 

22 communicate, to cross-cover, to --- even for 
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1 purposes of audits, basically, to have multiple 

2 opinions that are not necessarily contracting 

3 opinions, but, you know, just being able to go 

4 around the corner and ask somebody, "Did you 

5 see this? What do you think?"

6 I mean, that's the kind of situation 

7 where it is challenging in occupational 

8 medicine because sometimes you're in settings 

9 where it doesn't allow for that. But where it

10 can allow for that, it enhances the practice, 

11 basically.

12 CHAIR MARKOWITZ: This is Steve 

13 Markowitz.

14 And I would add it also makes it 

15 more attractive work for the physicians. I 

16 guess there are many jobs in occupational 

17 medicine and very few physicians, very few new 

18 ones being trained each year, and it is tough 

19 to attract good occupational medicine 

20 physicians. So, an interesting interactive 

21 work environment is attractive. 

22 Other comments? Dr. Friedman-
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1 Jimenez.

2 MEMBER FRIEDMAN-JIMENEZ: In our 

3 occupational medicine clinic at Bellevue NYU, 

4 we have occupational medicine rounds.

5 We discuss cases among our three 

6 physicians, industrial hygienists, ergonomists 

7 and others and it's really valuable. It's 

8 almost an exercise in continuing medical 

9 education.

10 We all teach each other stuff and, 

11 you know, I've been in this 30 plus years and 

12 I'm learning from other people on rounds.

13 I think it's really important to 

14 have a community that doctors who have to make 

15 these kind of decisions can bounce cases off of 

16 and get feedback on how to think about it on 

17 something they may or may not know. I think it 

18 could be great.

19 And maybe -- I don't know your 

20 experience at Yale, Carrie, but I would bet 

21 that most of the academic occupational medicine 

22 clinics around the country have some kind of 
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1 rounds.

2 And maybe we could incorporate this 

3 into a regular rounds type of experience or 

4 accessibility that the physicians could access 

5 if they feel that they want to reach out for 

6 additional opinions.

7 CHAIR MARKOWITZ: Dr. Redlich.

8 MEMBER REDLICH: I would just add 

9 that some sort of discussion is helpful both 

10 educationally and also to provide greater 

11 consistency, which I think is really important 

12 for a compensation system.

13 And we clinically in our practice, 

14 we have a kind of conference at the end of 

15 every clinic to discuss cases, but it creates 

16 consistency among the different attendees.

17 CHAIR MARKOWITZ: Dr. Sokas.

18 MEMBER SOKAS: And just, again, 

19 within DOL, the Office of Occupational Medicine 

20 and Nursing in OSHA does exactly that.

21 They have regular meetings to 

22 discuss their own internal program for their 
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1 compliance officers, as well as they host 

2 trainees. And the trainees provide --- and 

3 supervise them to provide lectures.

4 I mean, in addition to the 

5 collegiality, there's kind of the incentive 

6 that comes when a trainee is asking a question 

7 or providing a different approach. And then it 

8 really challenges the attending or the 

9 physicians in the group to answer those 

10 questions.

11 So, it's just the idea that there is 

12 a need for collegiality. There's some that's 

13 internally available, but some that could be. 

14 The other thing that has happened in the past, 

15 I don't know if it's still happening, is there 

16 are collaborative activities between NIOSH and 

17 OSHA and there's no reason why there couldn't 

18 be some cross-collaboration for continuing 

19 education, but the biggest issue is just that 

20 day-to-day being able to walk around the corner 

21 and talk to somebody.

22 CHAIR MARKOWITZ: Any other 
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1 comments?

2 Yes, Dr. Friedman-Jimenez.

3 MEMBER FRIEDMAN-JIMENEZ: Yeah. 

4 Occupational medicine is so broad and there's 

5 so many thousands of toxins and hundreds of 

6 diseases that we deal with that no one can know 

7 everything.

8 And I think that it really could be 

9 a great resource if we figure out a way to make 

10 expertise of multiple physicians available, 

11 accessible to the CMCs and the medical 

12 director, if they choose.

13 CHAIR MARKOWITZ: Okay. So, you 

14 know, if there is additional information that 

15 the program wants to provide on this issue as 

16 is cited in the recommendation, we're very 

17 happy to receive it.

18 And, you know, if there's need for 

19 further discussion, assuming we have a 

20 telephone meeting with the board in January, we 

21 could discuss this further. Otherwise --- yes, 

22 Ms. Leiton.
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1 MS. LEITON: We'll definitely 

2 provide the information about what OWCP has, 

3 the resources we have, how we collaborate 

4 within OWCP.

5 When it goes beyond -- when these 

6 recommendations go beyond OWCP and into the 

7 Department level, OSHA, MSHA, that becomes a 

8 whole different ball game.

9 And, you know, we really have been 

10 told to focus on our OWCP program, so I just 

11 want to make sure that that's clear in terms of 

12 scope and what we're looking at.

13 So, we'll provide you with what we 

14 have internally and what we can do within that 

15 realm.

16 CHAIR MARKOWITZ: So, how many full17 time physicians or Ph.D.-level people are there 

18 within OWCP on the staff?

19 MS. LEITON: I will get back to you. 

20 I don't want to quote incorrectly on the 

21 record.

22 CHAIR MARKOWITZ: That would be 
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1 useful.

2 Dr. Sokas.

3 MEMBER SOKAS: There's at least one 

4 more physician that I hired into DOL.

5 (Laughter.)

6 MS. LEITON: Are you talking DOL or 

7 OWCP?

8 CHAIR MARKOWITZ: I'm talking about 

9 OWCP.

10 MS. LEITON: Yeah. We have Ted --

11 and we also have Dr. Armstrong. We have others 

12 and I'll look and see what other...

13 CHAIR MARKOWITZ: Okay.

14 Ms. Vlieger.

15 MEMBER VLIEGER: So, in these 

16 questions we pose concerning collecting medical 

17 evidence and how a medical opinion would be 

18 properly informed, did anyone ask the 

19 Department's doctor about our recommendations?

20 MS. LEITON: Yes. He was involved 

21 with all of these responses.

22 CHAIR MARKOWITZ: Dr. Silver.
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1 MEMBER SILVER: If NYU drafted Yale 

2 to follow through on a proposal from Georgetown 

3 with Hopkins sitting in the audience and it was 

4 about holding grand rounds, I would jump on it. 

5 And it's not just because I'm a sleepy east 

6 Tennessee state university.

7 CHAIR MARKOWITZ: Dr. Sokas, did you 

8 want to --- okay. If there are no further 

9 comments, we'll move on.

10 So, now we're going to discuss the 

11 DOL responses to our April 2017 

12 recommendations. This is going to be a little 

13 bit on the Board's part of thinking out loud.

14 I say that both for the Board's 

15 purposes and also the public because we 

16 received these responses last week and we 

17 haven't really discussed them either at a 

18 committee level or all that much among 

19 ourselves and some people may not have had all 

20 that much opportunity to look at them.

21 So, I know the public, this was made 

22 available to the public just this week. We're 
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1 going to try to --- we're going to again read 

2 them even though some of them are a bit long, 

3 but it's important to be as inclusive in this 

4 discussion as possible.

5 On asbestos, which is the first one, 

6 asbestos-related diseases, and if you could 

7 just --- Kevin, if you could just bring the 

8 page further up to summarize the 

9 recommendations, there's --- we want to look at 

10 the table at the bottom of that page.

11 If you can bring it up a little 

12 further and if you could make it any bigger, 

13 maybe people could see it. So, basically our 

14 recommendation was to take several --- the 

15 spectrum of asbestos-related disease.

16 And you can see in the second column 

17 we deal with cancer of the --- mostly lining of 

18 the lungs, sometimes abdomen, called 

19 mesothelioma.

20 And then in the third column we 

21 discuss asbestosis, scarring of the lungs due 

22 to asbestos, or scarring of the lining of the 
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1 lung, the asbestos related pleural disease. 

2 And then in the fourth column we address cancer 

3 of the lungs, ovary, and larynx.

4 And we have made recommendations for 

5 presumptions by DOL on duration of how long a 

6 person would need to be exposed before it was 

7 presumed that their exposure was significant to 

8 cause that asbestos-related disease --- again, 

9 I'm talking about exposure to asbestos --- what 

10 job titles would be included in these 

11 presumptions --- and in every case it was 

12 maintenance and construction job titles ---

13 what calendar years of exposure to asbestos 

14 we're talking about.

15 And here, there was discussion among 

16 the board members at the April meeting and we 

17 settled on this presumption about exposure to 

18 asbestos prior to 2005.

19 And then finally we recommended that 

20 in all instances, that the minimum period of 

21 time between when the person first reports 

22 exposure to asbestos in their job and when they 
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1 developed the disease, be 15 years across the 

2 board.

3 So, that's the --- that was our 

4 recommended presumptions for asbestos-related 

5 disease.

6 So, there's a long DOL response to 

7 this and there are a few issues that really 

8 need significant discussion, but I do think 

9 it's worth the time to read this unless ---

10 okay. Great. We have volunteers. Go ahead, 

11 Dr. Sokas, beginning with "With regard."

12 And, Kevin, if you could bring us to 

13 the next page? We're not going to read the 

14 whole thing and then discuss it. What we 

15 should do is read a couple paragraphs and then 

16 have a discussion, and then move on.

17 MEMBER SOKAS: Okay. "With regard 

18 to Recommendation No. 1-1, OWCP agrees that the 

19 250-day aggregate duration of exposure is a 

20 reasonable standard to apply when assessing 

21 presumptive standards for asbestos-related 

22 health effects pertaining to the following five 
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1 asbestos-associated conditions: asbestosis, 

2 asbestos-related pleural disease, lung cancer, 

3 and cancer of the ovary and larynx."

4 The next one?

5 CHAIR MARKOWITZ: Yes.

6 MEMBER SOKAS: "OWCP currently makes 

7 a distinction between 'exposure presumptions' 

8 and 'causation presumptions.' The Division of 

9 Energy Employees Occupational Illness 

10 Compensation, DEEOIC, or 'the program,' has 

11 determined that certain presumptions may be 

12 made as to the nature, frequency, and duration 

13 of a specific exposure.

14 "Presumptions are based on knowledge 

15 and evidence OWCP has obtained through 

16 industrial hygiene knowledge of labor 

17 categories and work processes and environmental 

18 health and safety practices in existence. 

19 Therefore, OWCP's exposure presumptions are 

20 specific to certain labor categories, work 

21 processes, and/or time frames.

22 "If an exposure presumption exists, 
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1 the claims examiner will apply the criteria to 

2 the specific toxic substance.

3 "As long as all criteria have been 

4 met, the case does not need to be reviewed by 

5 an industrial hygienist.

6 "With regard to exposure to asbestos 

7 specifically, the program recognizes that 

8 asbestos is a toxic material that was present 

9 in all DOE facility locations. However, OWCP 

10 assumes different levels of exposure depending 

11 on the employee's labor categories and years of 

12 employment.

13 "The program has developed a list of 

14 labor categories considered to have had 

15 significant exposure to asbestos at high or low 

16 levels referred to by the board as Attachment 

17 1.

18 "If an employee worked in one of 

19 these labor categories before December 31st, 

20 1986, the program considers that he or she had 

21 significant exposure at high levels.

22 "If the employee worked in one of 
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1 the labor categories --- sorry --- if the 

2 employee worked in one of the labor categories 

3 between 1987 and 1995 in one of these labor 

4 categories, the employee is presumed to have 

5 significant exposure to asbestos at low levels.

6 "While employees in all other labor 

7 categories or during other years of employment 

8 are assumed to have had some level of exposure 

9 to asbestos, the level of exposure is 

10 determined by guidance from an industrial 

11 hygienist on a case-by-case basis.

12 "OWCP applies these exposure 

13 presumptions before applying any causation 

14 presumptions."

15 CHAIR MARKOWITZ: Okay. I think we 

16 should stop here and discuss it. The 

17 subsequent paragraphs are related, so we may 

18 double-cover a little bit, but that's okay.

19 Dr. Welch.

20 MEMBER WELCH: Well, I was just 

21 going to say I think that the subsequent 

22 paragraphs, I mean, because here the response 
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1 is restating the current approach, and our 

2 approach was clearly different.

3 So, if we're going to talk about the 

4 exposure presumptions, I think we probably have 

5 to jump to the later paragraphs that are part 

6 of that; don't you think?

7 CHAIR MARKOWITZ: Yeah. I think ---

8 that's fine. I mean, frankly, in our 

9 recommendation we combined exposure and 

10 causation presumptions for the purposes of 

11 exposure. We didn't make that distinction. 

12 So, let's read on and then we'll discuss.

13 (Comments off mic.)

14 MEMBER BODEN: "OWCP currently 

15 applies a causation standard to the conditions 

16 of the asbestosis, laryngeal cancer, ovarian 

17 cancer, and mesothelioma, using criteria 

18 specific to each of these conditions.

19 "For all four conditions in order to 

20 apply a presumption that the condition is 

21 related to exposure to asbestos under Part E, 

22 it must be a medical diagnosis of the 
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1 condition, and the employee must have been 

2 employed in a job that would have brought him 

3 or her into contact with significant exposure 

4 to asbestos on a day-by-day basis for at least 

5 250 aggregate workdays.

6 "Exposure can be determined by 

7 existing asbestos exposure presumptions as 

8 outlined above, or through an industrial 

9 hygiene assessment.

10 "The program also applies varying 

11 latency periods to each of these conditions. 

12 For asbestosis, latency is 10 years after 

13 initial exposure; for laryngeal cancer, it's 15 

14 years; for ovarian cancer, 20 years; and for 

15 mesothelioma, it's 30 years.

16 "The program has not yet created a 

17 presumption for lung cancer as it relates to 

18 exposure to asbestos. However, OWCP agrees 

19 that sufficient literature exists to develop 

20 one.

21 "OWCP reviewed the Board's 

22 recommendation that the latency period for all 
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1 of the listed conditions be 15 years and agrees 

2 to change the existing latency standards for 

3 all conditions except asbestosis.

4 "Since the current latency period of 

5 10 years for asbestosis is claimant friendly 

6 and OWCP's research confirms that this period 

7 is scientifically valid, OWCP will retain the 

8 existing 10-year latency period."

9 CHAIR MARKOWITZ: So, we should just 

10 continue the next two paragraphs.

11 MEMBER BODEN: Okay. I'll read 

12 another paragraph and then I'll pass.

13 "In developing the labor categories 

14 for use in asbestos exposure presumptions, the 

15 program primarily relied on the scientific 

16 research conducted and complied by the Agency 

17 for Toxic Substances and Disease Registry, 

18 ATSDR, within the Department of Health and 

19 Human Services, HHS.

20 "They published a booklet on January 

21 29th, 2014, entitled 'Case Studies in 

22 Environmental Medicine, Asbestos Toxicity.'
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1 "Pages 31 through 32 include a list 

2 of occupations they determine to entail 

3 significant asbestos exposure. OWCP worked 

4 with its contractor Paragon who created the 

5 SEM, to review the list and tailor it to the 

6 labor categories relevant to the DOE complex.

7 "The scientists at Paragon are 

8 former DOE nuclear workers and very familiar 

9 with labor categories at the DOE facilities.

10 "OWCP included in its policy more 

11 specific definitions where appropriate like 

12 'maintenance mechanic' instead of 'maintenance 

13 worker,' excluded some on the ATSDR list that 

14 were clearly not DOE related like 

15 'longshoreman,' and further tailored the list 

16 to DOE job descriptions."

17 I pass.

18 MEMBER WELCH: "In determining the 

19 causation standards, the program also relied on 

20 this publication along with updated information 

21 from the International Agency for Research on 

22 Cancer, IARC, and articles and publications 
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1 based on human studies, including the American 

2 Journal of Epidemiology, American Journal of 

3 Respiratory and Critical Care Medicine, the 

4 American Journal of Industrial Medicine, and 

5 the Journal of Occupational Medicine and 

6 Toxicology.

7 "In reference" ---

8 CHAIR MARKOWITZ: Let's stop there 

9 for a second.

10 MEMBER WELCH: Okay.

11 CHAIR MARKOWITZ: So, the floor is 

12 open. So, Kevin, if you could turn it back to 

13 the table of our recommendations?

14 Okay. Dr. Welch.

15 MEMBER WELCH: Well, I think that if 

16 we look at what we recommended versus what 

17 we've gotten so far, is that we have a clear 

18 statement about agreeing on the latency, that 

19 DOL likes the 15 years, the Department likes 

20 the 15 years, and we'll keep the 10 years for 

21 asbestosis, and we'll develop one for lung 

22 cancer because lung cancer currently isn't part 
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1 of their causation presumptions. So, I think 

2 that's a good response to what we recommended.

3 I think that the other parts of the 

4 table we might have to go a little bit deeper 

5 into their responses because, on one hand, the 

6 response says that they currently use the 250-

7 day aggregate workdays, but, in addition, and 

8 it seems a little contradictory, they're 

9 requiring different levels of exposure 

10 depending on the employee's labor categories 

11 and years of employment.

12 So that -- the 250 days for the 

13 specific conditions in our table where we have 

14 250 days, we seem to be in agreement, but how 

15 those 250 days are applied is then interpreted 

16 based on labor categories, which is somewhat --

17 - so, I think -- I think so far we've gotten an 

18 answer to the latency question, but we haven't 

19 really gotten a specific answer to the job 

20 titles and the calendar years. 

21 CHAIR MARKOWITZ: Dr. Welch, you 

22 have additional comments or ---
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1 MEMBER WELCH: No.

2 CHAIR MARKOWITZ: Okay.

3 MEMBER VLIEGER: Dr. Markowitz, on 

4 the paper that was just provided to us at 

5 break, its title page has recommendations. 

6 There are attachments in it.

7 The attachment is referenced in this 

8 document that we are discussing and it has the 

9 labor categories listed, but my question about 

10 the labor categories that are listed is that --

11 - and we've discussed this a number of times --

12 - the labor category names are not consistent 

13 across the complex.

14 And we have that problem within the 

15 SEM. And the people who provided this list, 

16 provided the list in SEM. 

17 So, I'm looking at Member Domina, 

18 you know, because we've had this discussion a 

19 number of times about the SEM not being 

20 accurate for all the names of the construction 

21 and maintenance workers. So, I would like us 

22 to discuss that at some point, too.
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1 CHAIR MARKOWITZ: So, I'd like to 

2 comment on aspects of the response so far. I 

3 looked up the ATSDR document because it's the 

4 source document for their labor categories. It 

5 seems to be the starting point supplemented by 

6 other things.

7 And, actually, I would request these 

8 references that are listed here, IARC, American 

9 Journal of Epidemiology and the like, to know 

10 which specific studies are being used for this.

11 In looking at the ATSDR document, 

12 which we are -- in the field are fairly quite 

13 familiar with the Agency for Toxic Disease and 

14 Substance Registry or --- Toxic Substances and 

15 Disease Registry, part of the Centers for 

16 Disease Control. So, they reference two NIOSH 

17 documents, 2003 and 2008.

18 And what those documents are, some 

19 of us may be familiar with, it's the annual 

20 report from NIOSH on work-related respiratory 

21 disease.

22 And if you go to those sources, 
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1 which I did, and you look at the job titles and 

2 where they got that list from, it's from people 

3 who died from asbestosis.

4 It's the mortality --- it's the 

5 national data based on death certificates of 

6 who died going back in time, 1990s, 1980s, who 

7 died from asbestosis.

8 So, asbestosis requires --- we 

9 generally consider that asbestosis requires the 

10 highest dosage level of exposure to asbestos of 

11 all the asbestos-related diseases. And, 

12 furthermore, to die from asbestosis means you 

13 really had a very heavy level of exposure to 

14 asbestos.

15 And, you know, Dr. Welch can comment 

16 on her former worker program, I can comment on 

17 ours. We don't see all that much asbestosis 

18 anymore, and we don't see any deaths, really, 

19 from asbestosis to speak of. So, that's the 

20 source document for the list.

21 And that's why that list is 

22 restricted to a certain number of the classic 
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1 occupations which are relevant and exclude, 

2 appropriately, irrelevant like shipyard workers 

3 and the like.

4 I think that list is too 

5 restrictive, but that's the -- that's where it 

6 comes from, just so we know.

7 And it says here that "Paragon 

8 reviewed that list and tailored it to labor 

9 categories relevant to the DOE complex."

10 And this -- I'm going to amplify on 

11 Ms. Vlieger's comment here. In our former 

12 worker program which we have at 14 different 

13 sites in the complex, we have thousands of job 

14 titles over the years, over 20 years, and it's 

15 hard to categorize them sometimes. 

16 Some of them are easy, plumbers and 

17 pipe fitters and the like, but some of them are 

18 clearly variants of more dominant categories 

19 and we have to call Mr. Whitley or we have to 

20 call other people to understand them. That is 

21 a very difficult task and this has been 

22 discussed for years in the former worker 
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1 program meetings.

2 For years, how can we join all the 

3 data in the complex so we can make sense of it 

4 as a whole? And one of the leading obstacles 

5 was that we could never quite figure out what a 

6 job title in 1970 at Y-12, which was different 

7 from the same job in 1990 at Y-12, how that 

8 compared to a job at Hanford, which would 

9 appear to be similar in 1975 and the like.

10 So, I'd really like to know how 

11 Paragon did that because we couldn't figure out 

12 that puzzle. And I don't -- it's hard. It's 

13 just hard.

14 And but in our recommendation on the 

15 presumption, we said maintenance and 

16 construction. So, that task has to be done in 

17 order to accomplish that recommendation.

18 Those individual specific job titles 

19 if this recommendation is accepted, someone has 

20 to do the work of aggregating them into those 

21 categories to which you could actually work 

22 with those presumptions.
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1 And Paragon may have started that 

2 task in creating the attachment, but my guess 

3 is that, you know, they only got so far because 

4 it's a very difficult task.

5 It's doable, though. It is doable. 

6 It may take a little bit of time, but it is 

7 doable and I think justified in terms of an 

8 approach, but let me stop here.

9 Dr. Boden.

10 MEMBER BODEN: So I'm, again, not 

11 expert in a lot of these things, but I have a 

12 question which is -- so, we have -- in the 

13 presumptions we have these broad categories of 

14 construction/maintenance workers, and I try to 

15 ask myself the question, "How many construction 

16 or maintenance workers would we like to drop 

17 from this list if we're thinking about it in 

18 terms of individual, more narrow categories?" 

19 And not being an expert, I couldn't come up 

20 with any that I could think about.

21 If there are a small number of jobs 

22 that are construction or maintenance where 
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1 there was very unlikely to be any asbestos 

2 exposure, it might be easier to list those jobs 

3 and say, "Okay, we won't count them," than to 

4 list all the construction and maintenance jobs 

5 where there might be exposure.

6 So, I phrase that without a question 

7 mark at the end, but there is a question mark 

8 which is, is that a reasonable way to proceed? 

9 Are there lots of construction worker or 

10 maintenance worker categories that wouldn't 

11 have been exposed to asbestos in sufficient 

12 quantity to be part of this presumption?

13 CHAIR MARKOWITZ: We have some 

14 maintenance workers here, but who wants to 

15 speak first?

16 Dr. Welch.

17 MEMBER WELCH: So, when you look at 

18 the list of job titles on Attachment 1, most of 

19 them are construction worker trades probably 

20 disproportionate to the employment at the site.

21 And I think, you know, if you look 

22 back, partly that's a question of the job 
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1 titles for what I've always called production 

2 workers, are much more complicated.

3 The construction workers are their 

4 construction trades. So, it's a little bit 

5 easier to see that they're included here. 

6 And in the next paragraph of the 

7 response to the recommendations, DOL does point 

8 out that, you know, 15 of the 17 construction 

9 trades are already included on the list.

10 So, but the reason we have 

11 information on construction trades really goes 

12 back to the work that Mt. Sinai did and Dr. 

13 Selikoff did in screening construction workers 

14 in the United States.

15 And information that -- I mean, if 

16 you really dug into it that Sinai did in 

17 projecting asbestos-related disease into the 

18 future, there's been a couple of really good 

19 analyses, but the data is limited on -- the 

20 epidemiology, even, forget industrial hygiene, 

21 epidemiology is limited on job titles outside 

22 of construction trades and it's limited within 
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1 the construction trades.

2 And John and I know, like, every 

3 single paper that one could rely on to make a 

4 table like this and it's always going to be too 

5 narrow, too restrictive. Whether you used 

6 death certificates which would clearly be the 

7 most restrictive way to identify job titles 

8 associated with asbestosis, or whether you used 

9 all the existing epidemiology, it's too 

10 restrictive. It's going to be too narrow.

11 And so, it's my opinion in this case 

12 you have to make exposure presumptions that are 

13 relatively generous because there is not going 

14 to be information that allows you to make a 

15 determination by job category.

16 I understand what you said, Dr. 

17 Markowitz, that Paragon should go through the 

18 list and identify which job titles fit into 

19 these categories with construction and 

20 maintenance and I think that's reasonable.

21 I think trying to get information 

22 that makes it more specific or for specific job 
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1 titles, we don't want people to get hung up on 

2 the absence of industrial hygiene or 

3 epidemiology, there has to be good judgment, 

4 but, you know, this is a production job where 

5 they would -- it's similar to some of these 

6 construction trades where we know that 

7 exposures would have been significant had we 

8 categorized them as a construction worker.

9 And maybe we can, you know, we can 

10 help with that, but it really can't rely on 

11 published epidemiology to add a job title to 

12 this list. It has to be expert judgment 

13 extrapolating from what we know about existing 

14 exposures and risks across all occupations, 

15 taking that information and putting it into --

16 and that's why as a recommendation we came up 

17 with construction and maintenance because we 

18 understand, as a group of people who have 

19 worked on this for a long time, that that will 

20 be relatively inclusive.

21 It could include some people who 

22 didn't have exposure. Okay. But it's going to 
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1 include most of the people who did who had a 

2 significant occupational exposure to asbestos. 

3 I don't think one can get more specific without 

4 excluding large categories of workers.

5 CHAIR MARKOWITZ: So, I'm just going 

6 to amplify what Dr. Welch said.

7 You know, you can study plumbers 

8 because there are a lot of plumbers. And you 

9 can study them at sites because there are a lot 

10 of plumbers at sites, pipe fitters and the 

11 like, and that applies to a lot of the broad 

12 categories on this list.

13 There are many job titles which are 

14 very specific which there aren't enough people 

15 to study. You're never going to study them 

16 because there aren't enough people to study. 

17 So, you make your -- this is really just 

18 reiterating what Dr. Welch said.

19 You make your decision on did that 

20 person work there or do similar work to another 

21 recognizable job title, say, maintenance, and 

22 we can say, "Yeah, they were likely exposed to 
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1 asbestos in that era in a significant way."

2 That's the way we exercise 

3 occupational medicine judgment and it's 

4 legitimate and accepted.

5 Mr. Domina.

6 MEMBER DOMINA: Well, just a comment 

7 on these lists and how they come up and job 

8 titles because I'm a metal trades guy and HAMTC 

9 is the only council in the country that sets 

10 jurisdiction for different job titles. It's 

11 not set at the international level on the east 

12 coast.

13 And so, when you start getting into 

14 the nuts and bolts of this for Paragon to try 

15 and do this and not work with HAMTC or even the 

16 building trades out there, they're doing a 

17 disservice to these people because it is into 

18 the nuts and bolts part of it.

19 And that's why when I look at some 

20 of this that, you know, like I think I've 

21 discussed before, our ironworkers build 

22 scaffolding. Everywhere else the carpenters 
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1 do, just as a for instance, you know. So, it 

2 depends -- that puts you in certain areas or 

3 not.

4 And then since 1990 or '92 we have 

5 craft alignment, which means another craft can 

6 assist another craft for doing work.

7 And so, for Paragon to try and do 

8 this without using the expertise of us at Oak 

9 Ridge, Pantex, anywhere else, is doing a 

10 disservice to the workers.

11 CHAIR MARKOWITZ: Dr. Dement.

12 MEMBER DEMENT: Just to respond to 

13 the issue of how we make inferences about 

14 particular trades or crafts in the absence of 

15 occupational epidemiology, it's sort of the 

16 experience that we've had in the BTMed program.

17 We'll never study all the crafts 

18 individually from a health outcome perspective. 

19 It's just not possible to do it and have any 

20 statistical power in any one study.

21 But from the BTMed experience, we 

22 have lots of different trades and occupational 
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1 titles. We try to consolidate those as best we 

2 can based on what we consider a similarity of 

3 their specific task.

4 And what we find, invariably, across 

5 the construction trades, they all report tasks 

6 that we a priori as hygienists will say, "Those 

7 are significant asbestos exposures."

8 It varies somewhat by trade and job, 

9 but across the board they've all had, in my 

10 view, significant past occupation with asbestos 

11 exposure.

12 There's some comments in here about 

13 some of our lists. We have teamsters. We have 

14 a category of security and others. And I would 

15 just say based on what these workers have 

16 reported in their own occupational histories 

17 collected by our staff, they, too, have 

18 reported asbestos exposures. That's why 

19 they're summarized on this list.

20 We're not necessarily suggesting 

21 that teamsters be listed in the presumption, 

22 but I think we ought to recognize that just 
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1 because they're teamsters does not mean they 

2 don't have occupational asbestos exposure.

3 CHAIR MARKOWITZ: Mr. Whitley.

4 MEMBER WHITLEY: To add to what you 

5 said, it's really impossible to do especially 

6 in the building crafts and trades because over 

7 the years the international unions have 

8 combined -- they've combined crafts, they've 

9 combined names and there's no way possible to 

10 do that.

11 But let me bring up another point 

12 that always bothers me when we say 

13 maintenance/construction. Until the late years 

14 when we think that maybe we're doing things 

15 right with asbestos, we put up a yellow tape or 

16 a yellow line on the floor or a piece of 

17 plastic chain, and the guy on that side of the 

18 chain was dressed out, HEPA filters taking in 

19 asbestos. The guy on this side of the chain 

20 was his supervisor, the IH person, maybe the HP 

21 person. All those people were on the other 

22 side of the thing and those guys can get 
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1 exposed on the other side of that piece of 

2 plastic tape as good as the guy taking it there 

3 or maybe worse.

4 CHAIR MARKOWITZ: Mr. Domina. We're 

5 going to take a few more comments, then we're 

6 going to break for lunch, then resume after 

7 lunch.

8 MEMBER DOMINA: Well, I think 

9 yesterday when we visited the machine shop down 

10 at Los Alamos is a prime example.

11 You take a building that was built 

12 in 1953 and I ask specifically how many 

13 different air zones that they had. And they 

14 got one and it vents to the atmosphere. The 

15 beryllium machine shop was a part of that.

16 And so when you add all those years 

17 together and you look at some of the buildings 

18 that we have worked in and then, yeah, they 

19 vent to the atmosphere, yeah, because you can 

20 see the atmosphere when you look up through the 

21 vent.

22 And so, these different things and 
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1 based on how hard the wind blows on any given 

2 day, what doors are open and not open, it can, 

3 you know, they've come in and done studies on 

4 airflow in the buildings that I've worked in 

5 and you can't replicate it twice, you know.

6 And a different piece of machinery 

7 is running on the outside of a doorway and I 

8 just think that, you know, looking at all of 

9 this, yes -- and I know this is difficult, but 

10 it's hard -- you can't really exclude people 

11 when, you know, we have people that are 

12 janitors with CBD, just as a for instance, or 

13 asbestos, you know, COPD, all those different 

14 things and they're not supposed to have been 

15 exposed to any of that.

16 And so, I just think that, too, like 

17 I said when we looked at that building 

18 yesterday and you asked us specific things 

19 because, yes, some buildings have different air 

20 zones, but then you find out later when they're 

21 having to do a modification, that there was 

22 supposed to be a divider up in some air space 
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1 that nobody ever goes into that the divider was 

2 never there. 

3 CHAIR MARKOWITZ: By the way, I 

4 forgot to mention on janitors and cleaners --

5 Steve Markowitz. I'm glad you raised that 

6 because when I look back at the ATSDR document, 

7 they didn't list janitors and cleaners as 

8 heavily exposed to asbestos, but when you go 

9 back to the references to NIOSH 2003-2008, they 

10 are there. And somewhere along the line they 

11 got dropped from the list and were never 

12 carried forward.

13 Ms. Pope.

14 MEMBER POPE: Yes. I was just going 

15 to echo what Garry and Kirk are saying. 

16 Being on the floor there, we used to 

17 joke around that yellow tape, you know, as long 

18 as you don't cross that yellow tape, you 

19 wouldn't be exposed.

20 And it was just common knowledge --

21 I think the different sides are unique in terms 

22 of the job titles.
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1 My husband was an operator and he 

2 was definitely -- the work assignment that you 

3 were assigned to didn't necessarily mean you 

4 were confined to just do an operator work, you 

5 were also doing removal of asbestos, but I 

6 think those job titles are unique to those 

7 sites.

8 CHAIR MARKOWITZ: Okay. We're going 

9 to stop here. I see Ms. Vlieger, we have Dr. 

10 Cassano. We'll resume at 1:00, but we need to 

11 break for lunch. So, thank you.

12 (Whereupon, the above-entitled 

13 matter went off the record at 12:02 p.m. and 

14 resumed at 1:05 p.m.)

15 CHAIR MARKOWITZ: Okay. Let's get 

16 started. We're talking about asbestos and we 

17 were --- actually, there were two people who 

18 wanted to make comments. Dr. Cassano -- Ms. 

19 Vlieger wanted to make a comment. She's not 

20 here yet, but, Dr. Cassano, you can make a 

21 comment.

22 And we're going to go back to read 
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1 the rest -- or much of the rest of this and --

2 I think we'll just read the rest of it after 

3 Dr. Cassano's comment and carry on then.

4 MEMBER CASSANO: And I think we 

5 finished sort of the discussion on the 

6 different employee categories. So, I wanted to 

7 talk -- and I'm not the most expert on the '87 

8 to '95, but it's the same issue '87 to '95 and 

9 after that.

10 And it's an issue that's come up 

11 before with the term -- I'm trying to figure 

12 out what, in practical terms, the difference 

13 between "significant exposure at high levels" 

14 and "significant exposure at low levels" is.

15 We had had a big discussion the last 

16 meeting about the word "significant" to begin 

17 with, and the fact that they were trying to 

18 banish it from all discussion because it's a 

19 meaningless term. "Significant," to me, means 

20 something different to somebody else.

21 So, if you could, explain from a 

22 practical standpoint what that means for 
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1 workers who have a claim, if there is any 

2 practical meaning.

3 CHAIR MARKOWITZ: So, I'm tempted to 

4 put off that question until we read the rest of 

5 it because we deal with dates. We begin to get 

6 back to the date of 2005, so would you mind 

7 just holding that and making it part of that 

8 discussion?

9 Oh, she does mind. Okay.

10 (Laughter.)

11 CHAIR MARKOWITZ: She minds. Go 

12 ahead, Ms. Leiton.

13 MS. LEITON: Well, I can put it in 

14 the context of what you're saying. For the '87 

15 and the -- when we say "significant" and we're 

16 applying these exposure presumptions, if it 

17 says "significant," then we're going to use the 

18 exposure presumptions that are in our already 

19 existing policy because the problem with the 

20 word "significant" is that it's written in the 

21 law; "at least as likely as not significant 

22 exposure to..." And so, that's why we continue 
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1 to use the word "significant."

2 And in the context of our exposure 

3 presumptions if it fits into one of those two 

4 signifcants, whether it's high or low, we'll 

5 still apply those other presumptions that we 

6 have in that presumption, if that helps.

7 MEMBER CASSANO: So, there is no 

8 difference?

9 MS. LEITON: Well, there is a 

10 difference between high and low, but I think if 

11 we're going to be referring it to a doctor or 

12 something like that, there's going to be a 

13 difference.

14 And the way that I think your 

15 question is, is how is that -- how is that 

16 difference applied in this particular 

17 presumption for our overall exposure assessment 

18 for the -- for the ones that fit into that 

19 category that are in the labor categories and 

20 all of that, we're going to fit it in there.

21 If they don't fit in there, then 

22 they still have high or low levels of exposure. 
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1 We can say that high or low significant 

2 exposure levels to a physician.

3 (Off mic comment)

4 MS. LEITON: It will to a physician 

5 in some cases.

6 CHAIR MARKOWITZ: Okay. So, any 

7 volunteers to read?

8 Dr. Welch. So, we're in the 

9 paragraph that begins "In reference to the 

10 Board's recommendations."

11 MEMBER WELCH: And then you can take 

12 the next really long one after that. This is 

13 Laura Welch reading.

14 "In reference to the Board's 

15 Recommendation No. 1-2 to apply asbestos 

16 presumption to 'All DOE workers who worked as 

17 maintenance or construction workers at a DOE 

18 site,' OWCP needs additional information and 

19 clarification.

20 "Included in the Board's reference 

21 materials was a listing of all 17 construction 

22 and trade worker/labor categories related to 
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1 asbestos exposure. 15 of which are already 

2 included in EEOIC's presumptive labor category 

3 listing.

4 "The two remaining categories 

5 include teamsters and administrative, 

6 scientific, security jobs.

7 "OWCP requests that the Board 

8 clarify whether their recommendations are that 

9 OWCP should include these remaining two labor 

10 categories and whether there are additional 

11 specific labor categories the Board believes 

12 should be included in the listing.

13 "OWCP also requests that the Board 

14 provide the research relied upon that supports 

15 the inclusion of the proposed new labor 

16 categories."

17 CHAIR MARKOWITZ: So, I think we 

18 should stop here because then we get into the 

19 calendar period. This is just where it's still 

20 now discussing the occupational categories.

21 And so, I would like to just -- this 

22 is Steven Markowitz -- I'd like to just 
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1 straighten something out.

2 I don't know if teamsters and 

3 administrative, scientific, security jobs 

4 appeared in the attachment to the asbestos 

5 recommendation.

6 If it did, it was inadvertent and it 

7 was unintended and it was -- and we wouldn't 

8 apply it because those are different categories 

9 of jobs than the construction list.

10 I don't think it was. But 

11 regardless, I think that may have appeared in 

12 the COPD presumption, but we can set that 

13 aside.

14 The DOL is requesting clarification 

15 on the labor categories that should be included 

16 in the listing, and I think that we should 

17 provide them with some clarification about 

18 that.

19 Other comments?

20 Yes. Dr. Welch.

21 MEMBER WELCH: I mean, we spent some 

22 good time talking about this before we read 
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1 this paragraph --

2 CHAIR MARKOWITZ: Right.

3 MEMBER WELCH: -- because what we 

4 said is construction --- what you said in 

5 particular was that for the maintenance jobs, 

6 that Paragon would need to go through the list 

7 of all the job categories and assign the 

8 appropriate ones that would be considered 

9 maintenance to use this maintenance or 

10 construction worker at a DOE site as part of 

11 the presumption, if I understood what you said.

12 CHAIR MARKOWITZ: So, can I clarify?

13 MEMBER WELCH: So, this discussion 

14 sort of jumps into the labor categories that 

15 are construction only, but doesn't really 

16 address our recommendation that maintenance 

17 workers be included. Yes, so maybe you should 

18 clarify.

19 CHAIR MARKOWITZ: Let me clarify. 

20 I hope I wasn't requesting that 

21 Paragon sort through the list of job titles and 

22 decide which ones are maintenance and which 
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1 ones are relevant within maintenance, but I was 

2 -- I hope what I thought I did was set out that 

3 that task needs to be done, which job titles 

4 constitute maintenance more than which 

5 maintenance job titles are exposed or not 

6 exposed to asbestos because it's unclear and 

7 there are a lot of specific job titles and that 

8 sorting has to be done, and it can be done.

9 That was what my intent was, to 

10 identify which job titles -- when the CE gets a 

11 claim and the claim says "I was X," and that X 

12 is a very specific job title, how does the CE, 

13 or with expert help, categorize that as a 

14 maintenance or construction or, if necessary, 

15 something else? That's what I was driving at.

16 Other comments and questions?

17 Okay. Good. So, let's move on.

18 MEMBER WELCH: So, I think that in 

19 the Department's response to our 

20 recommendation, the question of including 

21 maintenance workers as a general category is 

22 not specifically addressed.
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1 CHAIR MARKOWITZ: They don't discuss 

2 -- they don't accept or reject the maintenance 

3 category.

4 MEMBER WELCH: Correct.

5 MS. LEITON: May I clarify?

6 CHAIR MARKOWITZ: Sure.

7 MS. LEITON: I believe when you guys 

8 say "maintenance and construction," we're 

9 referring to both being qualified, not just 

10 construction workers.

11 Is that your question? Yeah, I 

12 think we were being inclusive of maintenance 

13 workers as well if you're going to provide us 

14 more information about what should be included 

15 in that category.

16 CHAIR MARKOWITZ: Right. So, are we 

17 to interpret the response is that you basically 

18 accept our recommendation?

19 MS. LEITON: Well, I think we're 

20 saying that if you could provide us with more 

21 specifics on both of those categories, that 

22 would be helpful in reviewing this presumption.
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1 CHAIR MARKOWITZ: All right. Okay. 

2 Interesting.

3 Okay. Our next reader. Ms. 

4 Vlieger.

5 MEMBER VLIEGER: These are comments 

6 from before we left for lunch. So, the 

7 Department is using the term "significant 

8 exposure" again, and I thought we had beat this 

9 horse already to death.

10 Okay. And then what is a safe level 

11 of exposure? If we're determining what's 

12 significant and what's not, what is a safe 

13 level?

14 So, because what we're having is the 

15 Department in their current IH and CMC reports, 

16 they're saying low, medium, high levels, and 

17 even at high levels they're saying it's 

18 insufficient for the disease.

19 So, what levels are we -- I mean, I 

20 know we can't quantify them because there is no 

21 safe level of exposure, but the Department has 

22 begun -- in their IH reports, has begun saying, 
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1 "Well, this worker because we know," and I 

2 don't know where the "we know" comes from, 

3 "this worker had low levels of exposure, this 

4 worker had moderate levels, this worker had 

5 high," but where are we defining that since 

6 there's no monitoring data?

7 CHAIR MARKOWITZ: Our recommended 

8 presumption doesn't address that issue about 

9 lesser exposures to asbestos and at what level 

10 you would consider it significant.

11 What we're saying is for this class 

12 of workers, this time period, meaning these 

13 criteria in the table, those are significantly 

14 exposed, it's a safe presumption that they have 

15 significant exposure, and you can relate it to 

16 the outcome.

17 And then there are people who don't 

18 meet this presumption for which an analysis has 

19 to be done. And then that question you're 

20 raising is relevant to them and we haven't 

21 addressed that.

22 I mean, it is something that 
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1 could/should be addressed in the future, but 

2 we're kind of starting with the more 

3 straightforward issues, I think.

4 Okay. Let's continue.

5 MEMBER CASSANO: "In reference to 

6 the Board's recommendation to apply an exposure 

7 presumption prior to January 1, 2005, as 

8 indicated above, OWCP currently has guidance 

9 concerning presumptions to be made regarding 

10 the level of exposure to asbestos.

11 "Our procedure manual states that 

12 the claims examiner is to assume high or low 

13 levels of significant exposure to asbestos 

14 depending on the years of exposure.

15 "Anything after 1995 is referred to 

16 an industrial hygienist for an individual 

17 assessment and then a physician must conduct a 

18 medical assessment.

19 "Then the program reviews the 

20 evidence for causation presumptions depending 

21 on the latency periods. 

22 "In the Board's presumptions this is 
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1 suggested not only that a presumption be made 

2 that the claimant was significantly exposed to 

3 asbestos before 2005, but also that the 

4 exposure was sufficient to presume that the 

5 asbestos exposure was at least as likely as not 

6 a significant factor and aggravating, 

7 contributing to, or causing a listed asbestos8 associated condition.

9 "While OWCP rescinded the EEOICPA 

10 Circular No. 15-06, that circular simply stated 

11 that the claims examiner should presume that 

12 any exposure after 1995 was within safety 

13 regulatory limits and, therefore, need not be 

14 reviewed by an industrial hygienist.

15 "That circular does not address 

16 causation and the program has continued to 

17 refer cases for an exposure and causation 

18 assessment for the listed conditions prior to 

19 accepting for causation where the employee was 

20 employed after 1995.

21 "The Board recommends changing the 

22 current guidance to allow for acceptance of 
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1 these medical conditions under broader 

2 circumstances.

3 "OWCP agrees to changing current 

4 latency periods for all of the conditions as 

5 recommended and to changing the duration of 

6 mesothelioma to greater than or equal to 30 

7 days.

8 "However, with regards to the 2005 

9 date, OWCP seeks additional clarity as to the 

10 underlying research and the rationale 

11 supporting the selection of that date as a 

12 temporal basis for application in the Board's 

13 presumption.

14 "While OWCP agrees with the Board 

15 that it is difficult to assign a temporal 

16 threshold for use in a presumption, more 

17 specific documented basis supporting the date 

18 of 2005 is necessary to satisfy the legal 

19 requirement that all presumptions must have 

20 significant -- sufficient," excuse me, 

21 "scientific rationale to withstand judicial 

22 scrutiny.
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1 "Our research indicates that DOE's 

2 predecessor, the Atomic Energy Commission, 

3 began developing health and safety standards as

4 early as 1973. After the Occupational Safety 

5 and Health Act of 1970 was passed, those 

6 standards became longer and more detailed as 

7 the dissemination and enforcement of enhanced 

8 safety measures progressed over the next two 

9 decades.

10 "Those safety measures were 

11 standardized in 1995 with the issuance by DOE 

12 of Order 440.1 and, accordingly, we could agree 

13 that 1995 creates a clear demarcation date for 

14 causation purposes with a solid supporting 

15 rationale that would withstand judicial 

16 scrutiny.

17 "To move that date out to 2005 on 

18 the assertion that it is likely -- that it 

19 likely took another decade for exposure levels 

20 to be significantly lower, it is much more 

21 problematic.

22 "The 2005 date without additional 
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1 support, places OWCP in a position of being 

2 unable to legally defend the presumption should 

3 it be challenged by an employee who only worked 

4 after 2005.

5 "Accordingly, OWCP requests that the 

6 Board provide more substantive medical, health, 

7 scientific justification or specific DOE 

8 operational data that supports the scientific 

9 basis for its selection of January 1, 2005, as 

10 the exposure demarcation date for use in the 

11 recommended presumptions."

12 CHAIR MARKOWITZ: Okay. The floor 

13 is open.

14 Ms. Vlieger.

15 MEMBER VLIEGER: One of the 

16 rebuttals to this circular when it was placed 

17 in effect came from United Steel Workers and 

18 also from other organizations that cited DOE's 

19 own inspections of lack of compliance with 

20 these rules.

21 So, as a starting basis, even DOE's 

22 own inspections showed that they weren't in 
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1 compliance. So, I think we can start there and 

2 move forward, but that was distributed to the 

3 Board, that letter with the references.

4 And Carrie can bring it up again, 

5 but, you know, we've already discussed the fact 

6 that even DOE admitted that they weren't 

7 following the rules.

8 CHAIR MARKOWITZ: So, we need to --

9 Steve Markowitz. We need to look at that.

10 Dr. Boden.

11 MEMBER BODEN: So, let me refer back 

12 to a discussion that we had earlier in the day 

13 in which I think we agreed that even though 

14 1995 was the date when this circular was 

15 approved, that there was -- nobody really 

16 believes that on the day the circular was 

17 approved that everybody came into compliance.

18 So, it seems to me that having that 

19 date is a kind of artificial, absolutely 

20 minimal date where we might think that people 

21 are starting to come into compliance, but we 

22 would need -- it seems unreasonable to have 
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1 that as the date just because there was a piece 

2 of paper that was put out at that time.

3 And I thought when we were 

4 discussing our earlier Recommendation No. 1, 

5 that that was indeed part of the discussion 

6 that we agreed about. We had a little 

7 discussion about that at the beginning of the 

8 day, I think.

9 MS. LEITON: I think that we agreed 

10 that finding a line in the sand, say 1995 or 

11 2005, is a challenge in and of itself.

12 We're talking about presumption, 

13 positive presumption of causation exposures, 

14 which sets the bar pretty high in terms of 

15 we're going to automatically assume that all 

16 the evidence is there, this person was highly -

17 - significantly exposed, we've been presuming a 

18 causation and we're going to go ahead and get 

19 this person compensation.

20 And that's where we run into what 

21 line is that, how do we determine it, and how 

22 do we support it if it goes to court? And the 
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1 person who works after 2005 or 1995, even, 

2 says, "Well, why isn't mine, you know, in this 

3 presumption?"

4 And so, documentation in support of 

5 any of the dates -- I mean, I think that what 

6 OWCP is looking for here is 2005. What are we 

7 relying on for that documentation and how can 

8 we -- how is that line in the sand going to be 

9 supportable and what can we rely on to say it's 

10 supportable.

11 CHAIR MARKOWITZ: So -- Steve 

12 Markowitz -- I'd like to point out that this 

13 paragraph is internally contradictory in that 

14 it says on line 8, "The satisfied legal 

15 requirement that all presumptions must have 

16 sufficient scientific rationale to withstand 

17 judicial scrutiny."

18 So, the 1995 date didn't have a 

19 scientific rationale as a policy rationale, 

20 which clearly was acceptable in terms of the 

21 program.

22 And later on in the third line from 
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1 the end of the paragraph it says that the "OWCP 

2 requests the Board provide more substantive 

3 medical, health, scientific justification or 

4 specific DOE operational data."

5 So, now science is okay or 

6 operational data, if you can demonstrate that 

7 there was exposure that we can make a 

8 presumption about.

9 Neither of those things, scientific 

10 or operational data, is the same as policy as 

11 DOE Order 440.1. So clearly, there are three 

12 possible rationales for setting a date.

13 And I'm not sure exactly -- I don't 

14 think -- I would -- I mean, we'll look at what 

15 Ms. Vlieger was referring to, but we can take a 

16 look for operational data to demonstrate 

17 excessive exposure during the relevant time 

18 period. Maybe we could make a request to DOE 

19 for that to see if that exists.

20 The rationale that you've heard here 

21 on the Board is that of reality. And the 

22 reality is that a paper order doesn't translate 
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1 into instant action and it takes time for it to 

2 happen.

3 And it's limited, in part, by what 

4 Mr. Domina referred to before, which is the ups 

5 and downs of funding and contract periods and 

6 the like.

7 I don't know if a description of 

8 that reality -- I don't know if that 

9 constitutes science or operational data or 

10 policy, but it seems very real to us and people 

11 who have worked at the plant and the people who 

12 have had longtime experience in occupational 

13 medicine knowing the way that policy and 

14 reality interact.

15 Mr. Domina.

16 MEMBER DOMINA: I guess for me, I'm 

17 thinking a couple of different things about 

18 this because I think that maybe that how we got 

19 to the rationale of the 2005 date, I think it 

20 was when we were talking about this circular at 

21 Oak Ridge last year and Mr. Vance was talking 

22 about the tiger teams. And then they picked 
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1 '95 because it was approximately seven, eight, 

2 nine years and we found that that didn't work.

3 But then now you get in today's 

4 world where you do an open-air demo for D&D and 

5 where you have a contractor -- and I believe 

6 this event happened in 2005 because -- or, 

7 excuse me, 2012 at Hanford, but it's on -- a 

8 professional cinematographer did it on open-air 

9 demo with asbestos, it's outside the area above 

10 the limits.

11 And so, I think we also have to look 

12 as even after '05 and a lot of places are going 

13 through D&D modes. And so, it's not just 

14 construction and maintenance anymore. Now, 

15 we're into tearing things down and then the 

16 evidence is gone.

17 And I think that's probably why when 

18 we were in Richland this spring I said, "Go big 

19 or go home," wanting 2015, you know.

20 CHAIR MARKOWITZ: But if you picked 

21 2015, it wouldn't solve this particular 

22 problem.
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1 MEMBER DOMINA: I know, but it's 

2 just -- I think you got to get outside of the 

3 maintenance and construction part of it, too, 

4 because the type of work that goes on here 

5 today and has been going on for 20 years, too.

6 Some of the D&D stuff started in the 

7 '80s, I mean, at least for us, and I just don't 

8 want people to lose sight of that.

9 CHAIR MARKOWITZ: Dr. Cassano.

10 MEMBER CASSANO: I'm going to give 

11 you an example of I think what people are 

12 talking about, and then I think I may have 

13 another way of looking at this.

14 And, again, we're thinking out loud 

15 here, but I can tell you in the late '90s when 

16 we were decommissioning NPTUs, which are the 

17 nuclear propulsion training units, which are 

18 under DOD auspices, instead of using 

19 contractors who would have required personal 

20 protective equipment at that time, they grabbed 

21 a bunch of Navy kids and went in -- and I was 

22 putting kids on the asbestos medical 
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1 surveillance program in the late '90s and early 

2 2000s because what they did was they'd rip 

3 something out and say, "Gee, this is lagging, 

4 it looks like it may be asbestos," and then 

5 they'd test it. They wouldn't test it before 

6 the kids went in and they weren't using wet 

7 process.

8 So, maybe the way to look at this is 

9 instead of looking at a date of the claim, we 

10 should say something like if they were working 

11 in a building that was built before 1978 and 

12 there is no documentation that the asbestos was 

13 abated, then the claim should be --- the 

14 presumption should apply because I believe it 

15 wasn't used before --- it was supposedly not 

16 used after 1978.

17 And if there was an abatement and 

18 there's no asbestos in the building, you should 

19 be able to do it because that's how it's done 

20 in other areas.

21 MS. LEITON: This is Rachel.

22 Just administering something like 
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1 that, would we have all the information to do 

2 that, would be our challenge, I think.

3 CHAIR MARKOWITZ: Other comments or 

4 questions?

5 Dr. Boden.

6 MEMBER BODEN: So, again, thinking 

7 out loud about this, part of the issue with a 

8 presumption when it's actually carried out in 

9 practice, is that a positive presumption can 

10 have a little bit of a feeling of a negative 

11 presumption.

12 That is, we have to be careful for 

13 people who don't meet the presumption that 

14 they're treated as if there was no presumption 

15 rather than somebody thinking, well, they 

16 didn't meet the presumption, so that's one 

17 strike against them.

18 So, in your case, Kirk, the one that 

19 you described at 2015, the fact that this 

20 presumption didn't hold shouldn't stop anybody 

21 from saying, "Hey, there was open-air 

22 demolition of an asbestos-containing building."
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1 And I guess our problem is figuring 

2 out how to balance the fact that no matter what 

3 you say, a positive presumption always carries 

4 with it a -- for people who are administering a 

5 program, a bit of a negative afterthought.

6 And I think that's a problem that 

7 the program just has to think about. We won't 

8 have a solution for that problem, but it is 

9 important.

10 CHAIR MARKOWITZ: Other comments?

11 Okay. So, let's move on to -- do 

12 you want to --

13 MEMBER REDLICH: I guess -- I mean, 

14 all of this comes up in the setting of a 

15 disease that a person has that's being 

16 attributed to asbestos exposure.

17 And so, my first question would be, 

18 what are the major diseases that are being 

19 claimed?

20 MS. LEITON: Well, I thought in the 

21 context of this discussion we were talking 

22 about the conditions that the Board was 
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1 discussing.

2 CHAIR MARKOWITZ: Are you talking 

3 about the asbestos diseases?

4 MEMBER REDLICH: Yes.

5 CHAIR MARKOWITZ: So, which of the 

6 asbestos diseases --

7 MEMBER REDLICH: Yes.

8 CHAIR MARKOWITZ: -- arrives most 

9 frequently?

10 MEMBER REDLICH: Yes. I'm just 

11 saying based on what really are you seeing as 

12 the most common --

13 MS. LEITON: Lung conditions are by 

14 far our highest claimed conditions and the ones 

15 that we've seen manifest the most in Part E.

16 The -- all of these are lung 

17 conditions. If you're talking about splitting 

18 them out, probably asbestosis of these 

19 conditions would be one of the highest, but 

20 there's a lot of things associated with 

21 asbestosis which turns into other conditions, 

22 as you know.
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1 So, those lung conditions could, you 

2 know, we also have -- obviously we have a lot 

3 of COPD which isn't asbestosis, but that is 

4 another very highly claimed condition. I'm not 

5 exactly sure what --

6 MEMBER REDLICH: The reason I was 

7 asking the question is, I think if someone had 

8 mesothelioma, I think there would be a 

9 presumption everyone would potentially look at 

10 the other jobs that the person had, but it 

11 would be a very high chance that that was 

12 related.

13 That's an uncommon cancer and that's 

14 one of the few examples which was really --

15 does not have other causes.

16 The other conditions -- well, ILD is 

17 also not as common. A condition I think -- so 

18 it's the COPD scenarios and probably -- and 

19 lung cancer I guess would be the two most 

20 common.

21 MEMBER WELCH: Exactly.

22 MEMBER REDLICH: So, then COPD is a 
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1 separate presumption so then we're getting to 

2 lung cancer where we, you know, have an 

3 interaction where asbestos can cause it and 

4 also can interact with smoking.

5 So, is that -- I just wanted to --

6 MS. LEITON: I'm not real sure what 

7 the question for me is.

8 MEMBER REDLICH: So, I'm just trying 

9 to get a feel for where this whole issue is 

10 most likely to come up because it -- that could 

11 help also potentially just sort of come up with 

12 a reasonable --

13 MS. LEITON: I mean, to parse out 

14 the various claims of conditions, lung cancer 

15 versus asbestosis versus mesothelioma, I'd 

16 probably have to go back and do a little more 

17 research.

18 I wouldn't want to misspeak here. I 

19 mean, I know that asbestosis is a high 

20 condition. Lung cancer is going to be less, 

21 but we have a lot of them. And mesothelioma, 

22 like you said, is going to be a fewer number 
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1 that we have, if that's what you're asking, but 

2 we can get more specific statistics on that.

3 MEMBER REDLICH: I think that's 

4 enough.

5 CHAIR MARKOWITZ: We should move 

6 along.

7 MEMBER REDLICH: Okay.

8 CHAIR MARKOWITZ: We've got a lot to 

9 cover.

10 MEMBER CASSANO: Just one last 

11 question.

12 So, if you had a mesothelioma in 

13 somebody that worked after 1995, you would deny 

14 that claim?

15 MS. LEITON: No. Anything after 

16 1995 would be referred to a specialist, if 

17 necessary. But a lot of times in the cases of 

18 mesothelioma, we're going to have a case that's 

19 already made.

20 We're going to have the exposure 

21 information. We're often going to have a 

22 doctor that says, "This is related to their 
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1 exposure to asbestos," and we won't have to go 

2 further than that.

3 CHAIR MARKOWITZ: Okay. Thank you. 

4 So, let's continue to Recommendation No. 2, 

5 which is work-related asthma. And I'm going to 

6 turn this over to -- oh, sorry about that. 

7 Yeah. I'll read this.

8 "In response to Recommendation 1-3, 

9 OWCP agrees that all claims for the six 

10 asbestos-related associated conditions named 

11 above that do not meet the exposure criteria 

12 shall be referred to industrial hygienists, the 

13 CMC as appropriate. By way of further answering 

14 clarification, OWCP currently stipulates in 

15 program policy that any case assessed for 

16 causation under Part E that does not satisfy an 

17 established presumptive standard, must undergo 

18 a case-specific assessment including review by 

19 an industrial hygienist and qualified 

20 physician," and then it references the 

21 procedure manual.

22 And then finally, the program 
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1 addresses Recommendation 1-4 in the answer to 

2 the Board's Recommendation No. 3 about COPD.

3 So, any comments on this issue of 

4 cases that don't make -- we've covered this 

5 numerous times.

6 Okay. So, let's continue then. So, 

7 I'm going to turn this over to Dr. Redlich who 

8 is a world-recognized expert on work-related 

9 asthma and has vast experience in her program 

10 at Yale in dealing with workers with work11 related asthma.

12 MEMBER REDLICH: Okay. So, this 

13 asthma recommendation had four parts to it. 

14 The first was that the Department of Labor 

15 should just use the term "work-related asthma" 

16 to incorporate both new onset occupational 

17 asthma, and also work exacerbated asthma.

18 And so the DOL's Response No. 1, if 

19 someone wants to read it -- it's an easy one.

20 MEMBER WELCH: Right. "OWCP agrees 

21 with Recommendation No. 2-1 and has already 

22 modified the procedure manual to incorporate 
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1 these into the September 2017 revision."

2 MEMBER REDLICH: Yes. So, that's 

3 why I put a check here next to that one. So, 

4 we can move on to No. 2.

5 And Recommendation No. 2, if someone 

6 wants to read that one -- well, actually, I'll 

7 summarize.

8 So, the recommendation basically 

9 related to how one would make the diagnosis of 

10 asthma. And recommending that a physician -- a 

11 treating physician diagnosis of asthma should 

12 be sufficient to recognize that the person had 

13 asthma and that additional testing such as a 

14 bronchodilator or methacholine challenge was 

15 not necessary. And the rationale for that had 

16 been given.

17 So, the DOL's response is...

18 MEMBER CASSANO: "OWCP also agrees 

19 that a diagnosis of asthma by a treating 

20 physician should be sufficient without specific 

21 references to the tests listed in the 

22 Recommendation 2-2. However, the physician's 
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1 opinion should include appropriate medical 

2 rationale based on objective findings to 

3 support the diagnosis as is required for any 

4 other diagnosis claimed under the program."

5 MEMBER REDLICH: Okay. And so, I 

6 think we all agree with that.

7 What I did do next was to then look 

8 and see in the procedure manual how that had 

9 been incorporated. And my understanding was 

10 that this was already incorporated.

11 And so, the actual procedure manual 

12 mentions under -- this is the section of the 

13 updated manual if you go down to Part 5b, "A 

14 qualified physician has diagnosed the employee 

15 with asthma."

16 And then, you know, a medical 

17 diagnosis should be made when the physician is 

18 able to identify the presence of, you know, 

19 what we talked about, reversible airflow 

20 obstruction. 

21 So, then it says, "However, a 

22 physician can also rely on other clinical 
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1 information to substantiate his or her 

2 diagnosis of asthma," which I think is what we 

3 recommended and what we agree on.

4 The next sentence, "So, the examples 

5 given, for example, spirometry for measurement 

6 of FEV1 and FVC is the most reliable method." 

7 And then it goes on a twelve percent 

8 improvement FEV1.

9 So, I was going to open this for 

10 discussion and I would just say that the 

11 concern was that that -- the way that was 

12 worded in the manual was confusing.

13 Laura.

14 MEMBER WELCH: Well, I guess we need 

15 to get some clarification because it says that 

16 "Recommendation 2.1," which is the definition 

17 of work-related asthma, "has been incorporated 

18 in the procedure manual," but it doesn't say 

19 that the medical criteria for diagnosis has 

20 been incorporated. So -- if you look at the 

21 responses.

22 So, I don't know whether this --
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1 there's a plan to change this or was Department 

2 thinking that the language that was already 

3 there was consistent with the response to our 

4 recommendation?

5 MS. LEITON: Well, we talked about 

6 work-related asthma changing that. We changed 

7 the definition to say "or other evidence."

8 So, what is it that you feel wasn't 

9 incorporated in the procedure manual?

10 MEMBER REDLICH: Okay. So, this 

11 section is moot by my reviewing the two 

12 versions of the manual. So, this is a new 

13 section that hadn't been in the previous 

14 manual.

15 MS. LEITON: Correct.

16 MEMBER REDLICH: And so, the concern 

17 we have is that this issues a great majority of 

18 patients who are diagnosed with asthma and 

19 never have a positive bronchodilator or 

20 methacholine challenge performed for a number 

21 of reasons and they're also imperfect tests.

22 So, to require that -- and I know 
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1 it's not -- but the way it's worded as the 

2 examples given are -- you do mention that in 

3 the wording, and I can go back -- so, I think 

4 the -- however, physician can also rely on 

5 other clinical information.

6 MS. LEITON: Those were just 

7 examples that could be used.

8 MEMBER REDLICH: We probably can go 

9 on. I just say it might be helpful to give the 

10 examples that we were talking about such as a, 

11 for example, a treating physician's diagnosis 

12 of asthma.

13 MS. LEITON: Qualified as physician 

14 has diagnosed the employee with asthma. I 

15 mean, what we're trying to say here, and I 

16 think that it's understood by our claims staff, 

17 but we can make sure, is that if a physician 

18 diagnoses it and provides medical rationale, 

19 that's sufficient, but here are some examples 

20 of some other ways that they could support 

21 that.

22 CHAIR MARKOWITZ: Steve Markowitz.
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1 I think we're talking about what you 

2 consider to be objective support for a 

3 diagnosis because everything in that paragraph 

4 is about breathing tests of one type or other, 

5 simpler ones or more complicated ones. And if 

6 I'm a clinician reading that, I'm going to say 

7 to myself, "They want breathing test 

8 confirmation."

9 When, in fact, what we think is that 

10 if a person has wheezing on a physical 

11 examination, that's objective evidence of 

12 asthma and that should be sufficient in 

13 accommodation with the history to make a 

14 diagnosis of that.

15 MS. LEITON: And if the doctor says 

16 that to us, we'll likely accept that as the 

17 doctor's diagnosis of asthma.

18 You know, it's very rare that our 

19 claims examiners are going to go questioning 

20 that. 

21 If a doctor says, "they have 

22 wheezing, this is the history of this patient, 
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1 here is why I believe."

2 Now, these are also examples that 

3 we've provided in addition. We usually -- when 

4 we train our claims staff, we try to make it 

5 clear these are examples.

6 Unless we say you are required to 

7 have these other things in there, if you have a 

8 doctor's diagnosis of it and not just a 

9 diagnosis, but some explanation of how they 

10 came to that diagnosis, that's usually going to 

11 be sufficient for our claims examiner.

12 I'm looking to Jolene just because 

13 she runs the district office and I wanted to 

14 get her confirmation on that, but she's nodding 

15 her head yes. So, I think that we will look at 

16 the totality of it. These are just examples.

17 CHAIR MARKOWITZ: Who -- Dr. Boden?

18 MEMBER BODEN: Can I just clarify 

19 what I think people are saying? 

20 They're not disagreeing with your 

21 examples. They're saying it would be very 

22 helpful to have an example that was other than 
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1 a breathing test example.

2 So, for example, the one that Dr. 

3 Markowitz just gave, which would then clarify 

4 that the other evidence is not just breathing 

5 tests.

6 MS. LEITON: We can do that.

7 MEMBER BODEN: I'm sure you can.

8 MS. LEITON: It would be helpful to 

9 have an example in --

10 MEMBER BODEN: It's easy.

11 MS. LEITON: Yes.

12 MEMBER BODEN: It was just a matter 

13 of --

14 MS. LEITON: And it may be in 

15 training that we can do that, but we can also 

16 add it to the procedure manual.

17 MEMBER BODEN: Thank you.

18 CHAIR MARKOWITZ: Steve Markowitz.

19 Maybe physicians -- treating 

20 physicians who look at this array of letters 

21 and support and they would interpret this as 

22 being we need a breathing test. So, it should 
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1 in there so that people other than CEs can 

2 interpret the problem.

3 Dr. Cassano.

4 MEMBER CASSANO: Just another 

5 practical question here.

6 So, if somebody actually did 

7 preimpose bronchodilators on a patient and 

8 submitted them and it was less than 12 percent 

9 improvement, what is the claims examiner going 

10 to do with that?

11 MS. LEITON: They are going to 

12 listen to what the doctor's official assessment 

13 is.

14 MEMBER CASSANO: Even if --

15 MS. LEITON: Even if it's not -- the 

16 doctor will be explaining his rationale.

17 CHAIR MARKOWITZ: Let's move on.

18 MEMBER REDLICH: So, the next two 

19 recommendations, Nos. 3 and 4, both relate to 

20 how one then decides that the asthma is work 

21 related. And it describes using the criteria 

22 of temporal association, you know, relationship 
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1 between exposures and onset of asthma or 

2 worsening of asthma symptoms, and it also makes 

3 the point that a specific triggering event, it 

4 can occur, but is not necessary.

5 And, also, that exposures such as 

6 dust and fumes are frequently causative and one 

7 would not necessarily need a single specific 

8 exposure.

9 And so, the DOL response is up here, 

10 if someone would like to read it.

11 MEMBER CASSANO: "For 

12 Recommendations 2-3 and 2-4 in its most recent 

13 update to Chapter 15 of the procedure manual, 

14 OWCP applies the policy regarding the 

15 assessment of work-related/occupational asthma 

16 that comports, in part, with these 

17 recommendations.

18 "OWCP policy requires evidence of a 

19 contemporaneous diagnosis of occupational 

20 asthma during covered Part E contractor 

21 employment or the well-rationalized opinion of 

22 a physician after a period of covered 
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1 employment as recommended in 2.3.

2 "The policy differs slightly from 

3 the recommendation in Recommendation 2-4, by 

4 requiring a triggering mechanism that occurred 

5 to cause, contribute to, or aggravate the 

6 condition.

7 "Legally, OWCP must require evidence 

8 that a toxic substance was the likely trigger 

9 for the condition because the condition can 

10 only be accepted as a compensable covered 

11 illness if it is at least as likely as not that 

12 the exposure to a toxic substance was related 

13 to employment at a DOE facility, 42 US Code 

14 Section 7385 subsection 4(c)1(b).

15 "A mere temporal association without 

16 identification of a toxic substance would not 

17 satisfy the statutory requirement for 

18 eligibility. In addition, neither heat nor 

19 cold as referenced in the Board recommendation 

20 can be defined as a toxic substance under this 

21 definition."

22 MEMBER REDLICH: Yes. So, I looked 
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1 at the manual, which is the next two slides. 

2 So, I could go with what the manual says, and 

3 this is in Appendix 1. So, it gives the 

4 definition of "work-related asthma" as new 

5 onset and both work exacerbated.

6 And then "The CE does not apply a 

7 toxic substance exposure assessment to a claim 

8 for work-related asthma, including the 

9 application of the SEM or IH referral process 

10 because any dust, vapor, gas or fume has the 

11 potential to affect asthma." And we agree with 

12 that statement. 

13 "Given the scope of potential 

14 occupational triggers that can affect asthma, 

15 the CE relies exclusively on the assessment of 

16 the medical evidence by a qualified physician."

17 And then it goes on to give the 

18 criteria in the next section. And so, it's cut 

19 off a little bit. This is the next part of the 

20 procedure manual.

21 "So, once having established" --

22 sorry -- "once having established the diagnosis 
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1 of asthma, the following criteria are available 

2 to demonstrate that the employee has work3 related asthma."

4 So, there are two ways this can be 

5 done. It says, "A qualified physician who 

6 during a period contemporaneous with the period 

7 of covered Part E employment diagnosed the 

8 employee with work-related asthma." I think we 

9 would agree with that.

10 And, also, I think everyone 

11 recognizes that the great majority of patients 

12 are not actually recognized as work-related 

13 asthma at the time.

14 So, then -- and that is taken into 

15 account under No. 2. "After a period of 

16 covered employment, a qualified physician 

17 conducts an examination of either the patient, 

18 available medical records, and he or she 

19 concludes that the evidence supports that the 

20 employee had asthma, and that an occupational 

21 exposure to a toxic substance was at least as 

22 likely as not a significant factor in causing, 
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1 contributing, or aggravating the condition.

2 "The qualified physician must 

3 provide a well-rationalized explanation with 

4 specific information on the mechanisms for 

5 causing, contributing or aggravating the 

6 conditions. And the strongest justification is 

7 when the physician can identify the asthmatic 

8 incident that occurred while the employee 

9 worked at the covered work site, and the most 

10 likely toxic substance trigger." And then it 

11 says that "the temporal association is not 

12 sufficient."

13 This is the last part of the manual. 

14 And then I've written there at least what my 

15 concern is that the response in the manual, I 

16 would say that's more than a slight difference 

17 from our recommendation in the way that it's 

18 worded.

19 And then also there is a somewhat 

20 internal inconsistency between this opening 

21 sentence that any dust, vapor, or fume has the 

22 potential to cause asthma. 
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1 And then there's sort of a statement 

2 that you need to identify a specific toxic 

3 substance.

4 So, I thought that we should open 

5 this up for discussion.

6 CHAIR MARKOWITZ: This is Steve 

7 Markowitz. So, you know, looking at this, the 

8 third line, the CE does not apply a toxic 

9 substance exposure assessment to a claim for 

10 work-related asthma.

11 And yet in the response, it says

12 that there needs to be identification. OWCP 

13 must require evidence that the toxic substance 

14 was the likely trigger for the condition.

15 So, that's a direct contradiction. 

16 And I think if we modify our recommendation in 

17 number three to include not just some temporal 

18 evidence, but that the workplace had vapors, 

19 gas, dust or fumes, right?

20 Because we know that's a 

21 precondition for the asthma. And we know that 

22 OWCP recognizes that.
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1 If we're to add -- modify our 

2 recommendation to include that, that would seem 

3 to satisfy the whole toxic substance issue.

4 MEMBER REDLICH: And I -- yeah. And 

5 I also add this, that it did seem that a lot of 

6 this discussion centered around the definition 

7 of a toxic substance.

8 And so -- and because of, I think, 

9 everyone's familiar with being over the Part E 

10 addendum that states that. That mentions a 

11 toxic substance.

12 So the NI -- this is how the NIH, 

13 our National Institute of Health defines a 

14 toxic substance, which, I think, is a very 

15 reasonable definition.

16 It's a material which has toxic 

17 properties. It may be a discrete toxic 

18 chemical or a mixture of toxic chemicals. For 

19 example, let's only discuss the reaction we get 

20 around toxic substances.

21 More specifically, lead chromate is 

22 a discrete toxic chemical. In fact this is a 
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1 toxic material which is not consistent with an 

2 exact chemical composition, but a variety of 

3 fibers and minerals.

4 Gasoline is also a toxic substance, 

5 rather than a toxic chemical. And it contains 

6 a mixture of many chemicals. And it goes on to 

7 say that toxic chemicals may not always have a 

8 constant composition.

9 So I think this is a well-accepted 

10 that the notion of a toxic substance that can -

11 - does not have to be a single identifiable 

12 chemical.

13 CHAIRMAN MARKOWITZ: Oh, I'm sorry, 

14 Dr. Sokas.

15 MEMBER SOKAS: And I think the word 

16 trigger is also a little bit problematic. 

17 Because it implies kind of a discrete event 

18 that is captured in a moment in time.

19 And just a different word would be 

20 adequate. Or, you know, just referring to the 

21 association, to the relationship of the 

22 exposure preceded the outcome.
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1 MEMBER REDLICH: Yes. I think 

2 you're referring to one.

3 MEMBER SOKAS: I think that is a 

4 response.

5 CHAIR MARKOWITZ: Dr. Welch?

6 MEMBER WELCH: So, what you were 

7 talking about in terms of the contradiction 

8 seems to read as a different description of 

9 what the claims examiner does versus what 

10 you're asking the physician to put in the 

11 report.

12 So, I'm not sure, it seems 

13 inconsistent to us. But I think Ms. Leiton 

14 could explain that to us.

15 MS. LEITON: Yeah. What we're 

16 telling the claims is they don't have to do a 

17 standard IH assessment for this particular 

18 circumstance.

19 And that they would rely on the 

20 physicians to relay that information that the 

21 exposure to toxic substances in the workplace 

22 is what was the contributing factor to this 
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1 incident.

2 It's not saying that we are -- we 

3 don't want that piece of it to be there. So we 

4 need to have a piece of it to be there.

5 That there was exposure to toxic 

6 substances in the workplace. And it was the 

7 contributing factor to the asthma.

8 But, given that asthma is so unique 

9 and so different from so many of other our 

10 conditions, we don't require that those go 

11 through the SEM or the IH assessment. Because 

12 we're already making an assumption that there 

13 was going to be exposure.

14 But we do need to have a medical 

15 doctor tell us that there's that link there. 

16 And that's what we're trying to relay here.

17 CHAIR MARKOWITZ: But then would it 

18 be sufficient if the physicians said, the 

19 worker was exposed to dust in essence? Vapors 

20 or --

21 MS. LEITON: We're getting into the 

22 argument that comes up in the next -- in the 
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1 COPD section where are -- where the -- what 

2 that means becomes important.

3 And one of the main reasons that's 

4 one of the big reasons that's important is when 

5 you come down to offset. And we need to 

6 identify specific exposures that we can get in 

7 that.

8 We'll have the argument later. But, 

9 yes. I mean, since there consent, if the 

10 doctor is going to say that there was -- for 

11 asthma cases it's going to be slightly 

12 different because of the fact that asthma is 

13 known to have been a -- that those exposures to 

14 gases, BG's whatever, so it is treated slightly 

15 differently.

16 But, I don't want to -- I don't want 

17 to over speak on this topic. Because it gets a 

18 little bit complicated.

19 But I think that the basic question 

20 about requiring a medical doctor to say that it 

21 was related to a toxic substance would be what 

22 we're looking for here. Rather, then having 
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1 the claims unit go through a whole IH SEM 

2 assessment.

3 MEMBER REDLICH: Yes. And so a big 

4 part of what I do is to train physicians on how 

5 to affect and diagnose this related asthma.

6 And this is the bulk of my practice. 

7 Patients referred. And I can say that number 

8 one, the great majority of pulmonologists, 

9 internists, and occupational medicine 

10 physicians actually have very little experience 

11 recognizing and diagnosing work related asthma.

12 And the great majority of these 

13 cases that are diagnosed, the case specific 

14 toxic substance is not identified. It is 

15 usually a mixture of exposures.

16 So, I think just in terms of how one 

17 communicates and educates that in the 

18 guidelines that one set out, it would be, you 

19 know, scientifically based on what the practice 

20 actually is.

21 And otherwise it would just be very 

22 confusing to any practitioner to -- that being 
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1 asked, you know, what is the specific 

2 substance? And it would be well, I'm not sure 

3 whether it was, you know, this mixture of the 

4 irritants or that.

5 They usually -- and I think the 

6 point that Dr. Sokas made is that most cases of 

7 work related asthma develops over a period of 

8 months or years and are not recognized after 

9 one single event or a discrete event.

10 And so it's just maybe in the 

11 wording of how this is described as what is 

12 expected of the physician.

13 MS. LEITON: Yeah. I think it 

14 requires a little bit further thought. And 

15 particularly when it comes to the vapors, gas 

16 and substances in it.

17 So, I agree with you that there 

18 could be better clarification for the 

19 physicians on that issue.

20 CHAIR MARKOWITZ: Yes, Dr. Welch?

21 MEMBER WELCH: So, if we could get a 

22 few questions. And I want to -- I think we 
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1 should be clear.

2 One is the question of whether under 

3 the statute you're required to have a trigger? 

4 And the statute says that the physician has to 

5 say that the exposures caused, contributed, or 

6 aggravated.

7 And it wouldn't necessarily require 

8 a specific trigger. That's kind of built into 

9 some understanding of what occupational asthma 

10 is.

11 And I think it would be fairly 

12 simple for the department to take out the 

13 discussion of a trigger as long as the 

14 physician is providing a rationale that the 

15 exposures that were at work were a substantial 

16 contributing factor in the development of work 

17 related asthma, which already has built into 

18 the diagnosis of counsel relationship with 

19 exposures at work.

20 So getting rid of the trigger 

21 wouldn't, I don't think, make it any harder. 

22 It's the in trying something that we often 
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1 don't find.

2 The other question is what mixtures 

3 would be acceptable for the physicians to say 

4 was the cause or contributor to aggravated 

5 exposure. And you know, if I were writing a 

6 report, I would know that I should stick in, 

7 even if I might say, vapors, gas, dust and 

8 fume, including vapors, dust, as well, you 

9 know, just so that there's something, there's a 

10 hook.

11 But not everyone, not treating 

12 physicians wouldn't necessarily know that 

13 that's necessary for the claims. And I don't 

14 know how you get around it.

15 Because in a way it's like vapors, 

16 gas, dust and fumes, and definitely we'll talk 

17 about that when we talk about COPD. That is 

18 the -- there are many things that are in the 

19 causative pathway.

20 And any exposure and any worker who 

21 has asthma, work related asthma or COPD in 

22 these facilities, we could probably identify 
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1 some specific components of that. Even though 

2 the cause is the multiple exposures, not one 

3 specific one.

4 And it's probably possible to 

5 identify specific ones, but how you can 

6 communicate that to make it work in the -- if 

7 there's a need for the department to hear a 

8 link to specific exposures when a diagnosing 

9 physician knows that's combined exposures.

10 It's sort of a -- it's a way to 

11 facilitate a claim. But it's not really --

12 it's not clear to me how you could make that 

13 case unless you have it because people 

14 understand the law very well and what the 

15 department needs in terms of communication of a 

16 claim.

17 So, I think the trigger thing we 

18 could -- we would encourage in the next 

19 revision because they are in the middle. 

20 Remove the discussion of a trigger that's not 

21 required.

22 A trigger is not required. An 
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1 aggravating cause is required. Or a 

2 contributing, aggravating cause is required.

3 Okay. But how to get around the 

4 VGDF, maybe we'll be into that mode.

5 CHAIR MARKOWITZ: Dr. Boden?

6 MEMBER BODEN: So, I think if I may 

7 quote an old saying, what we have here is a 

8 failure to communicate. But not a failure to 

9 communicate between people, but between more on 

10 medicine and the law.

11 But the law is very clear. You're 

12 stuck with passive substance. Right?

13 And the question is, how -- and you 

14 have a very admirable statement in the events. 

15 You know, just about anything can cause -- can 

16 exacerbate or aggravate or cause asthma.

17 And I think the problem then is 

18 bridging. Which means you have to either be 

19 really good if the CE could communicate to a 

20 doctor that we need you -- if this is the case, 

21 we need you to say that there's a toxic 

22 substance in there.
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1 Now there's another issue that I 

2 think brought up before Carrie, when we were 

3 discussing this, which is that perhaps the 

4 administrative guidance within the program is 

5 too narrow in its definition of a toxic 

6 substance.

7 And it simply needs to be a little 

8 broader that would include, you know, mixtures 

9 or things that are harder to identify as having 

10 specific components would be -- should be 

11 acceptable.

12 And that that could be communicated 

13 as well to the physician who's providing the 

14 diagnosis.

15 CHAIR MARKOWITZ: Dr. Silver?

16 MEMBER SILVER: So asthma's 

17 difference, would it be helpful to have some 

18 preparatory language in this part of the 

19 procedural manual along the lines of, asthma 

20 can be highly variable in onset presentation 

21 aging post response and clinical course?

22 Just to restrain the claims 
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1 examiners from going down their usual rabbit 

2 hole of reductionist medical tests and pursuit 

3 of a specific substance?

4 MS. LEITON: Are you asking me that 

5 question?

6 MEMBER SILVER: No. What I did ask 

7 you -- I was daring to ask you as the world's 

8 expert.

9 MEMBER REDLICH: So I would say as a 

10 pulmonary expert that actually there is no 

11 single one definition of asthma or one 

12 diagnostic testing criterion. And it is 

13 considered a very heavy continuous condition 

14 with a number of variable features.

15 I would just also while we're not 

16 sort of knit picking about the wording that 

17 could confuse people. See also in the new 

18 manual, the qualified physician must provide a 

19 well rationalized explanation with specific 

20 information on the mechanism for causes.

21 And after years and years of 

22 research, there's still a lack of understanding 
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1 of the mechanisms by which numerous agents 

2 cause asthma. And so I think that that is not 

3 something I as an expert in the field would 

4 have trouble describing the mechanism.

5 So I don't think that should be 

6 perfected or suggested. Is that that could 

7 scare someone from making the diagnosis.

8 CHAIR MARKOWITZ: So we need to wrap 

9 this up and move on. But, Dr. Cassano?

10 MEMBER CASSANO: Just a follow up to 

11 Dr. Boden's comment about the, you know, what's 

12 in the statute. You quote 42 U.S. Code, which 

13 is your regulation.

14 It is not law intended. And 

15 therefore could be changed if you did the hard 

16 work to change it.

17 CHAIR MARKOWITZ: Mr. Turner?

18 MEMBER TURNER: James Turner. I'd 

19 just like to know how much money has been spent 

20 on this program since it first started back in 

21 2000?

22 CHAIR MARKOWITZ: In view of 
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1 overall? Or part of the whole?

2 MEMBER TURNER: The entire program.

3 CHAIR MARKOWITZ: Well, I looked at 

4 the website recently. I mean, Ms. Leiton can 

5 respond.

6 But, I saw 14.5 -- 14.3, .5 billion 

7 has spent on compensation in medical care. 

8 Yeah. About 14 billion since 2000.

9 Which includes both the radiation 

10 side Part B and Part E.

11 MS. LEITON: Yeah. That's the 

12 payout. That's for compensation of medical 

13 benefits to recipients.

14 And just U.S. Code versus CFR, the 

15 U.S. Code that's referenced here is to the 

16 statute rather than the regulation.

17 CHAIR MARKOWITZ: Okay. Mr. 

18 Griffin? Yeah, yeah. Go ahead.

19 MEMBER GRIFFON: This is Mark 

20 Griffin. Yeah, I just had to go back. I'm not 

21 sure I'm going to be happy with going back 

22 here.
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1 But, this statement about the CE 

2 does not apply in toxic system exposure system 

3 to a claim for work related asthma, including 

4 that patient or the SEM or IH assistant or 

5 referral process. Because any dust, vapor or 

6 gas or fume has the potential to affect asthma.

7 So I mean, what I'm trying to 

8 wrestle with is, does that mean there's a 

9 presumed exposure anywhere on any VA site to 

10 test gas vapor or fumes?

11 And therefore you're saying you 

12 don't get an assessment because we're assuming 

13 any employee at any of these sites has exposure 

14 to that. Has a potential for significant 

15 exposure for more significant exposure in one 

16 or any of those.

17 Is that why you don't require the 

18 assessment? I'm just trying to understand.

19 MS. LEITON: That's a very good 

20 question. And one that has very significant 

21 implications, were I to say that.

22 MEMBER GRIFFON: Yeah.
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1 MS. LEITON: I'm not saying that.

2 MEMBER GRIFFON: I'm just wanting to 

3 get it on the record.

4 MS. LEITON: I need to look at --

5 MEMBER GRIFFON: Because it's 

6 bothering me.

7 MS. LEITON: This chapter and the 

8 way it's worded a little bit more carefully in 

9 light of the vapors, gasses, dust and fumes 

10 conversation.

11 CHAIR MARKOWITZ: Okay. Any other 

12 last minute comments? Let's move onto COPD, 

13 Recommendation Number Three.

14 I guess Dr. Welch, if you want to 

15 just summarize it. Or I can leave it up to 

16 you, the recommendations so people are 

17 oriented.

18 Maybe just summarize this.

19 MEMBER WELCH: Yeah. And it's Laura 

20 Welch. So the recommendation was a presumption 

21 for COPD.

22 And essentially it said, a claimant 
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1 with a physician's diagnosis of COPD who worked 

2 either in any of the labor categories in 

3 Attachment 1, which should be expanded to 

4 include all construction maintenance done. Or, 

5 with reported exposure to VGDF with relevant 

6 tasks on the occupational history for a period 

7 with an aggregate to at least five years and 

8 deemed to have sufficient exposure to toxins to 

9 aggravate, contribute to, or cause COPD.

10 And then the second part, that 

11 shouldn't be the only way people get a claim. 

12 They should be evaluated even if it's fewer 

13 than five years.

14 CHAIR MARKOWITZ: Okay. So, we need 

15 a leader?

16 MEMBER WELCH: Well, I can start. 

17 We'll see how long it is before I lose my 

18 voice.

19 OWCP will consider modifications of 

20 the current COPD presumptive standards. 

21 However, we have a number of questions and 

22 concerns with this recommendation as stated.
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1 COPD's current procedures provide 

2 that a claims examiner conduct an exposure to 

3 asbestos at a DOE facility with the Part B 

4 definition of causation for COPD when the 

5 following criteria are met:

6 One, the diagnosis of COPD has been 

7 established by the medical evidence. And two, 

8 the employee must have been employed for an 

9 aggregate of 20 years in a position that would 

10 have had significant levels of asbestos 

11 exposure.

12 In order to meet the criteria for 

13 exposure sufficient to make the causation 

14 presumption, the claims examiner must determine 

15 that either the employee was employed in any of 

16 the labor categories discussed above for an 

17 aggregate of 20 years prior to 1986, or an 

18 industrial hygienist has provided a well 

19 rationalized discussion of case specific 

20 exposure at high levels during any time period.

21 The Board has recommended that the 

22 duration of exposure should be five years. And 
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1 cites an article from Dr. Dement that is based 

2 on the study of former DOE workers who self3 reported both labor categories and exposure.

4 This exposure limit conflicts with 

5 the results of OWCP's own search of other 

6 medical and scientific information, using the 

7 literature described above in response to 

8 recommendation number one.

9 Accordingly, in order for OWCP to 

10 consider these two presumptions further, OWCP 

11 requests the Board provide additional medical 

12 or scientific studies that specifically 

13 reference these issues.

14 With regard to the Board's 

15 discussion of labor categories and 

16 recommendation 3(1)(a), OWCP requests the Board 

17 to provide the information about labor 

18 categories as described in response to 

19 recommendation number one.

20 Concerning the Board's reference to 

21 vapors, gasses, dust and fumes, the reg list 

22 specifically states that a condition can only 
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1 be accepted as a compensable-covered illness if 

2 it is as least as likely as not exposure to a 

3 specific toxic substance -- specific toxic 

4 substance was related to employment in a 

5 Department of Energy facility.

6 This program has defined a toxic 

7 substance for purposes of claims administration 

8 as any material that has the potential to cause 

9 illness or death because of its radioactive, 

10 chemical, or biologic nature. Vapors, Gasses, 

11 -- vapors, gasses, dust and fumes is a broad 

12 reference that encompasses many different 

13 specific toxic substances.

14 Exposures to vapors, gasses, dust 

15 and fumes apply to virtually all circumstances 

16 that exist in either occupational or non17 occupational settings.

18 OWCP has evaluated the literature 

19 submitted by the Board. And while it appears 

20 that different groupings of individual toxic 

21 substances can be categorized under the lexicon

22 of vapors, gas, dust and fumes in scientific 
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1 studies, there's not one consistent list of 

2 toxic substances in the literature that 

3 represents these groupings.

4 In addition, the Program is legally 

5 required to offset awards for any condition, 

6 including COPD, to reflect tort recovery tied 

7 to specific toxic substances. Therefore, OWCP 

8 is unable to implement this recommendation.

9 However, if the Board develops a 

10 list of toxic substances that represent vapors, 

11 gases, dust and fumes, we may be in a better 

12 position to consider this assumption. For all 

13 the above reasons, OWCP is not able to accept 

14 this recommendation related to COPD as written.

15 OWCP welcomes recommended revisions 

16 to these presumptions after consideration of 

17 these concerns.

18 CHAIR MARKOWITZ: Okay. Comments? 

19 Okay. So let's start with Mr. Domina.

20 MEMBER DOMINA: I just have two 

21 words: tank farms. And we were all there. I 

22 mean, and those are gasses, vapors, fumes.
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1 And so, I guess to me it appears 

2 something to that effect probably wasn't taken 

3 into consideration when this was put in. 

4 Because there's a laundry list of reports over 

5 the last 20 or 30 years of doing that. And 

6 this stuff is going on today because of the 

7 adverse effects of how it affects our people. 

8 Because when you have different people from 

9 different walks of life and then they get a 

10 whiff and people's noses instantly start 

11 bleeding, have trouble breathing, this falls 

12 under vapors, gasses, and fumes.

13 And it's a toxic soup of mixtures 

14 that are, you know -- and so I'm trying to 

15 figure out how that does not fit. How you 

16 can't -- you can eliminate vapors, gasses, 

17 fumes.

18 CHAIR MARKOWITZ: Dr. Dement?

19 MEMBER DEMENT: I guess just a few 

20 comments about what I think is the essence of 

21 the Board's recommendation with regard to this 

22 general category of vapors, gas, dust, and 
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1 fumes.

2 And our study, which is referenced 

3 in the responses to comments, they point out 

4 that the exposures were self-reported, both 

5 with regard to job category and exposures. We 

6 accept that. We acknowledge that. It's a 

7 weakness of any study that's retrospective in 

8 nature and done to look at relationships with 

9 disease. In most cases, those relationships 

10 are dampened by missing information, exposure 

11 misclassification, rather than enhanced.

12 I think the other comment is our 

13 VGDF exposure matrix which was in fact 

14 developed by specific toxic substances, a list 

15 of them, that were then collectively looked at 

16 in our study.

17 And what we found was each one of 

18 these materials by themselves had a 

19 relationship of increased risk of COPD in 

20 general. Our biggest relationship, our 

21 strongest relationship was when we took all of 

22 those collectively as a measure of exposure, 
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1 all vapors, gas, dust and fumes.

2 When we looked at the literature, 

3 it's entirely consistent with the body of 

4 scientific literature. And so this 

5 recommendation is simply trying to bring this 

6 presumption in line with the vast body of 

7 scientific literature in this area.

8 CHAIR MARKOWITZ: Ms. Vlieger?

9 MEMBER VLIEGER: I'm trying to 

10 figure out from the discussion why the 

11 Department is forcing the issue to a single 

12 discrete toxic substance when a toxic substance 

13 can be a mixture.

14 So, I realize the Department needs 

15 to recover on tort claims. And I believe the 

16 majority of those are under the asbestos tort 

17 situation. So if the Department is erring on 

18 the side of not accepting this recommendation 

19 because you might miss recovering some money 

20 from toxic torts, I think that's a separate 

21 issue than saying that we're not going to look 

22 at COPD claims in this manner.
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1 CHAIR MARKOWITZ: Let me just make a 

2 comment. Steve Markowitz. I've never heard of 

3 a toxic tort asbestos claim for COPD, actually.

4 I mean, just so people understand, 

5 the toxic torts on asbestos are for lung 

6 cancer, mesothelioma, asbestosis. They're not 

7 for COPD.

8 MEMBER VLIEGER: I understand. But 

9 the Department has extended that if it's not an 

10 asbestos claim but asbestos could have 

11 contributed or caused the accepted condition, 

12 they are recovering tort money because it's an 

13 asbestos-related disease.

14 So recently an asthma claim was 

15 recovered against tort money from an asbestos 

16 claim because the Department contended, through 

17 the CMC and the IH, that the asbestos 

18 contributed or caused the asthma.

19 So my point is, if the Department's 

20 concerned about now recovering some money 

21 against tort claims in asbestos situations from 

22 COPD, I think that the claims that were 
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1 actually made on the asbestos tort claims were 

2 asbestos disease.

3 And so, having seen what happened 

4 with the asthma case that was an asbestos tort 

5 claim, and that was specifically stated in the 

6 Department's reply, if it's a recovery issue, I 

7 think that needs to be addressed somewhere 

8 other than the COPD and asthma claims.

9 CHAIR MARKOWITZ: Dr. Sokas?

10 MEMBER SOKAS: It's just two points. 

11 One is that it looks, from that NIH definition, 

12 which I think is pretty clear, that if DOL were 

13 to, you know, basically accept the NIH 

14 definition of toxic substance that that would 

15 go a long way to helping with this particular 

16 recommendation.

17 And again, to Dr. Dement's point, 

18 there's lots of information about welding, as 

19 an example, of kind of a bunch of different 

20 exposures all kind of blended together that has 

21 clearly been associated with COPD development 

22 and other types of, you know, dust exposure.
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1 So, really, that study was meant to 

2 come up with a reasonable duration. It wasn't 

3 really the only study that supports this 

4 relationship.

5 CHAIR MARKOWITZ: Dr. Welch? 

6 MEMBER WELCH: Yeah. I mean, it 

7 would be relatively easy to come up with a list 

8 of agents that are vapors, gases, dust, and 

9 fumes. SEM has 14 of them that are related to 

10 COPD as it is. 

11 But I guess the question would then 

12 be the duration. Because what we have 

13 established, I think what the literature 

14 establishes, is that five years of mixed 

15 exposure to these agents is sufficient to be 

16 considered, under a presumption, causative 

17 under the definition of the law.

18 But if you said, well, we had to say 

19 it was five years for any one of these 

20 substances, that would limit the 

21 compensability, because it's really due to the 

22 combination effects. And most of the workers 
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1 that we see are construction workers with 

2 silica, asbestos, and welding together. 

3 And so, you know, even if we could 

4 provide such a list, I don't think it's going 

5 to solve the problem. Our recommendation and 

6 the current presumption are so far apart that 

7 I'm not quite sure how to approach them. I 

8 mean, there are lists. I mean, we can make a 

9 list. It would probably have about 40 things 

10 on it. And then that would leave out some 

11 people.

12 But it would probably be, you know, 

13 generally accepted. You could peer review the 

14 list. It would come from existing literature. 

15 And that, in a way, seems to be one of the 

16 biggest problems, is the exposure. But then, 

17 you know, your current presumption requires 20 

18 years of exposure to asbestos. And we're 

19 saying five years of exposure to a range of 

20 compounds. I'm not quite sure how you get that 

21 closer together.

22 And I don't know if that's something 
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1 you could comment on or help us with.

2 MS. LEITON: This is Rachel. It's a 

3 difficult thing to comment on off the cuff. 

4 But I do want to say that I do recognize that 

5 our presumption is about exposure to asbestos 

6 versus exposure to VGDF.

7 And I think the biggest challenge 

8 is, we've suggested here that you provide us a 

9 list, then how that does lists apply to the 

10 literature with regard to the length of 

11 exposure? Tying those together is what we 

12 would need to do, one way or another.

13 A list is something I think would 

14 definitely be helpful. And then how that 

15 applies to the five years in literature would 

16 also be helpful.

17 How we get from A to C, I don't have 

18 the answer to that yet. But I think that those 

19 two things might be helpful in assessing that.

20 CHAIR MARKOWITZ: Steve Markowitz. 

21 But I think a list -- we've heard that there 

22 are 30,000 or more toxic substances in the SEM. 
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1 Any list we come up with is going to be short 

2 relative to that. It's going to shortchange 

3 what we know about VGDF.

4 So I'm skeptical about our ability 

5 to come up with a list. If I think about 

6 someone who's working at Paducah, in the 

7 Gaseous Diffusion Plant, and they're a 

8 production worker and they report exposure to 

9 VGDF, I know they were exposed to toxic 

10 substances.

11 If a person, on the other hand, 

12 worked in an office at some distance from the 

13 production site at the same facility and they 

14 reported the same VGDF exposure, I don't know 

15 whether that could contribute to their COPD or 

16 not.

17 And so that's kind of a problem. 

18 Because we do need to focus, I think, a little 

19 bit. But I'm concerned about focusing too 

20 much, because I think it won't work effectively 

21 as a presumption.

22 And the way to focus it I don't 
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1 think is by listing toxins, but by perhaps 

2 listing broad occupational categories and work 

3 sites, because we can get away from the --

4 there's a comment in here about non5 occupational settings have VGDF exposure.

6 So, you know, I wouldn't -- in the 

7 school setting, I wouldn't say someone, except 

8 if they're a laboratory teacher, I wouldn't 

9 say, if they report VGDF, it's causative or 

10 contributive to COPD, because it wouldn't be 

11 sufficient.

12 But that doesn't pass the laugh test 

13 at the Gaseous Diffusion Plant. So there 

14 should be some way we can recommend VGDF, which 

15 is clear from the epidemiology that that's the 

16 reported exposure that relates, aggravates, 

17 contributes, or causes COPD, in which we can 

18 accommodate the workers in the complex that we 

19 know had that exposure on a routine basis.

20 Dr. Welch?

21 MEMBER WELCH: So I guess my 

22 suggestion is, there's something between the 
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1 individual chemical, like, you know, 

2 bis(chloromethyl) ether and VGDF. There are 

3 groups of chemicals, respiratory irritants, 

4 organic solvents, that I think would be 

5 accepted under any NIM definition of toxic 

6 substance. Because they're considered -- it's 

7 a chemical class of some kind.

8 And, you know, if it's necessary to 

9 have a list, it would be better if it's longer 

10 than just the 14 that are in the SEM. And then 

11 there would be people who don't fit but should 

12 go for an industrial hygiene evaluation.

13 But I think with the -- I think we 

14 could give it a try and then circulate it 

15 around, and if it doesn't pass the laugh test 

16 within the Board, whatever the list is, then we 

17 wouldn't do it.

18 But I think -- because, I mean, my 

19 sense is that's the place to start to try to 

20 push this. You know, we're really far apart 

21 and there's many different questions within 

22 this.
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1 And once we come up with a list then 

2 I think we're going to start pushing that five3 year question. You know, how do we know that 

4 five years is a good presumption?

5 CHAIR MARKOWITZ: Dr. Dement?

6 MEMBER DEMENT: I think Laura's 

7 point is well-taken. I think we could produce 

8 a list, some of which would be specific 

9 substances, either from the work that we've 

10 done ourselves or the literature. I mean, the 

11 literature has specific substances.

12 But in our own work, and in the 

13 literature, many of the exposures that are sort 

14 of sub-parts of VGDF are in fact mixtures of 

15 their own. For example, cement dust we know 

16 has silica in it. But not much of it is 

17 silica. The vast majority is materials that, 

18 for regulatory purposes, are considered 

19 nuisance dust, have a very high exposure PEL. 

20 And nonetheless, the literature still supports 

21 that those exposures to those materials that 

22 have these high exposure limits are related to 
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1 COPD.

2 So it will be a mixture of things. 

3 Some specific compounds, some, like wood dust, 

4 it's a mixture as well. A lot of them are 

5 going to be mixtures. And the question is, 

6 would that be sufficient?

7 MEMBER WELCH: John, those, like 

8 cement and wood dust, are accepted causes of 

9 COPD in the SEM already. So I think then we're 

10 starting to look at things that are within the 

11 rubric of what the Department has considered as 

12 toxic substances in the past.

13 MEMBER DEMENT: Yeah. And the 

14 precedent is already well accepted that 

15 mixtures are considered causative. It's just 

16 how we build that to expand it to the concept 

17 of VGDF, which is a bit more broad than just 

18 some of those mixtures.

19 CHAIR MARKOWITZ: Dr. Friedman20 Jimenez?

21 MEMBER FRIEDMAN-JIMENEZ: I have a 

22 question for John. In the literature, have you 
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1 or anyone else looked for an interaction 

2 between VGDF exposure and specific job titles 

3 and/or industries to see if there's an 

4 interaction effect here?

5 MEMBER DEMENT: Not that I'm aware 

6 of. The only real interaction that's really 

7 been looked at in any great detail, and where 

8 the data really exists in sufficient quantity, 

9 has been the smoking.

10 And that's been variable too. Some 

11 of our own work suggests that they're additive. 

12 Some work suggests that they're maybe more than 

13 just additive. So we would say, from our work, 

14 smoking is at least added to COPD.

15 But to look at -- even in our own 

16 studies, we can't even look at specific job 

17 titles or jobs. Except in a very few cases 

18 where we have lots of workers. So to expand 

19 that to different industries and combinations 

20 would be pretty tough, just from a numbers 

21 perspective.

22 CHAIR MARKOWITZ: Other comments?
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1 (No audible response.)

2 CHAIR MARKOWITZ: Okay. So, I want 

3 to skip -- I'm afraid recommendation number 

4 four is going to take longer than -- may take 

5 longer than 15 minutes. So I want to skip to 

6 five. I'll start --

7 MEMBER REDLICH: Can we just --

8 before we leave COPD --

9 CHAIR MARKOWITZ: Sure.

10 MEMBER REDLICH: I just wanted to 

11 bring it to your -- the DOL's attention that 

12 the most recent procedure manual, some of the 

13 information, just sort of the basic information 

14 for how one diagnoses COPD, is just sort of 

15 factually not accurate. It mentions 

16 bronchoscopy. I won't go into all the detail, 

17 but there is a table in the appendix that gives 

18 criteria that just -- I'd be happy to go over 

19 it with someone, but it's just not -- it's just 

20 inaccurate.

21 It also mentions that the person has 

22 to be a non-smoker. And it then defines a non-
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1 smoker.

2 MEMBER WELCH: Actually I think that 

3 that table, if I remember correctly, it's if 

4 the claims examiner is going to accept a work5 related COPD without a CMC they have to be a 

6 non-smoker.

7 It doesn't require them to be a non8 smoker to get a medical diagnosis of COPD. It 

9 has to be related to the causation issue. But 

10 it is very hard to parse through the different 

11 tables.

12 MEMBER REDLICH: It's just a bit 

13 confusing. And there's some room for 

14 improvement.

15 MS. LEITON: I mean, I can't address 

16 that right here, right now, without looking at 

17 it specifically. But we'd be happy to talk to 

18 you.

19 You know, the Department would be happy to talk 

20 to you after. A lot of these criteria we 

21 developed, we developed in consult with other 

22 medical professionals as well.
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1 So I think it's just a matter of 

2 maybe it's a communication issue. But we're 

3 happy to look at it with you at some point.

4 TO HERE

5 CHAIR MARKOWITZ: Okay. And Ms. 

6 Vlieger, did you want to make a comment?

7 MEMBER VLIEGER: I have just a 

8 question. And it's come up a few times in 

9 discussion and in some claims I've seen that 

10 have been remanded.

11 The CMC cites that the reason the 

12 person has COPD is due to smoking and not 20 

13 years of being a welder and other instances of 

14 the same kin.

15 And I thought there was something in 

16 the directive that the claim could not be 

17 worded that way or it could not be denied from 

18 smoking?

19 MS. LEITON: We've in fact told our 

20 CMCs that smoking is not to be considered. And 

21 that they are to be looking at the occupational 

22 exposure to toxic substances.
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1 So, if you're seeing that, please 

2 bring them to our attention, because we may 

3 have a training need.

4 MEMBER VLIEGER: Was there a policy 

5 guidance or something that is out there?

6 MS. LEITON: It was probably in 

7 their training. I would have to go back and 

8 look.

9 MEMBER VLIEGER: Okay. If you could 

10 provide that to the Board, because if that's in 

11 that gray area of materials that are published 

12 we may need to address that.

13 MS. LEITON: I'll provide what I can 

14 contractually.

15 CHAIR MARKOWITZ: Okay. We're going 

16 to skip recommendation four, just for time 

17 purposes. We'll come back to it. But let's 

18 address recommendation five.

19 Recommendation five is that the 

20 Board recommended that the Program enhance 

21 scientific and technical capabilities to 

22 support the development of policies and enhance 
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1 decision-making with respect to individual 

2 claims. And to inform the assessment of the 

3 merit of the work of the CMCs and the IHs.

4 So, the response is that OWCP agrees 

5 that it would be useful to have additional 

6 scientific and technical research capabilities 

7 to support Program policies and procedures.

8 While the primary responsibility and 

9 mandate of the Program is to adjudicate 

10 individual claims, OWCP recognizes that with the 

11 complexity of Part E exposure and causation 

12 issues it is helpful to be able to generalize 

13 whenever possible. To that end, the Program 

14 contracted with a group of scientists, Paragon, 

15 mostly DOE former workers to create and update 

16 the SEM on a regular basis.

17 In addition, OWCP has the medical 

18 director for the Program, as well as general 

19 technicians, to assist with overall concerns or 

20 issues.

21 As mentioned above, the medical 

22 director conducts routine quarterly audits of 
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1 the reports of the CMCs. The Program also 

2 employs toxicologists to research current 

3 studies and assist the Program with causation 

4 presumptions.

5 Beyond that, OWCP contracts out for 

6 medical consultants and IHs to provide opinions 

7 on individual claims. OWCP looks forward to any 

8 additional assistance the Board is able to 

9 provide in this regard.

10 So, I'm not sure what that response 

11 means. Because, on the one hand, you agree it 

12 would be useful to have additional resources, 

13 and then you basically recite your current 

14 resources and, I think, suggest that they're 

15 adequate.

16 And our recommendation -- and this is 

17 largely based on the work that we've done so far 

18 and what we've seen, is that the kind of 

19 conversations we have around this table, we 

20 suspect they're not happening within the 

21 Program, and in part because of access to 

22 appropriate expertise. 
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1 We're not saying there is none. 

2 We're saying it's insufficient to deal with some 

3 important issues. So that's -- anybody else 

4 have comments about that? Dr. Cassano?

5 MEMBER CASSANO: Just a question, 

6 actually. Paragon, you say they are scientists 

7 and technicians, what are the -- what is their 

8 background? Am I supposed to know that already?

9 What is the mix? Are they industrial hygienists 

10 and physicians or technicians or what? Because 

11 you say they're former DOE workers, mostly.

12 MS. LEITON: I believe we've provided 

13 the Board with the credentials of our SEM team. 

14 But I can go back and look again. I know that a 

15 couple of them are industrial hygienists. But I 

16 believe we've even provided CVs. But --

17 MEMBER CASSANO: For the Paragon? 

18 MS. LEITON: It's not? Okay. Well, 

19 we can look into that again. I thought we had 

20 provided it. I know we've provided it in some 

21 venues. So we'll look into getting you that 

22 information. Was there a second part, I'm 
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1 sorry, to that question? 

2 MEMBER CASSANO: No, I just wanted to 

3 know more about how that --

4 MS. LEITON: Sure.

5 CHAIR MARKOWITZ: So I take it that 

6 the -- oh, Dr. Boden?

7 MEMBER BODEN: In my mind, I

8 translated your response as, it would be nice to 

9 have more people, but we don't have the 

10 resources or capabilities for hiring them. Is 

11 that a fair translation?

12 MS. LEITON: I think that the mandate 

13 that we were given, and the funding that we're 

14 given, is to adjudicate individual claims. We 

15 weren't given the mandate to do additional 

16 research to provide presumptions to the Program, 

17 or get resources to help us do that.

18 So, there's where the rub comes. 

19 Where does the -- where fit that resource, 

20 outside of what we've already been able to do 

21 internally and with contractors, into a whole 

22 other section that doesn't really exist since 
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1 they created the Program to adjudicate claims.

2 And we're able to get some overhead 

3 for policy and the things that are absolutely 

4 necessary -- and I'm not saying that this isn't 

5 necessary, but that decision isn't always ours 

6 to make.

7 MEMBER BODEN: So what I don't 

8 understand about that is, you have to develop 

9 policies to run this program. I don't know 

10 which part of the budget it might come from.

11 But to inform those polices, wouldn't 

12 better science and medicine perhaps industrial 

13 hygiene -- our suggestion is that you need 

14 additional resources to do that. And that would 

15 seem to be a core part of the Program. So I 

16 don't really understand that, I suppose.

17 (No audible response.)

18 CHAIR MARKOWITZ: That's okay. Not 

19 every question requires a response. That's 

20 okay. Some questions are rhetorical. Dr. 

21 Sokas?

22 MEMBER SOKAS: And I'm also kind of 
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1 interpreting the response a little bit to mean,

2 and why don't the Board do it. And I just did 

3 want to point out that most of us have day jobs, 

4 you know what I mean?

5 The radiation board does have a 

6 budget to hire and oversee others. And Mark may 

7 be able to speak to that, but the issue of 

8 resources is a real one. Not just for the 

9 Department, but also for those of us who have 

10 other jobs and fit this in, you know, on nights 

11 and weekends.

12 MEMBER REDLICH: I also, from the 70-

13 plus cases that I reviewed, think that some 

14 investment in what we're referring to could end 

15 up being quite cost effective. Because there 

16 were a number of cases that, eventually, the 

17 correct decision was made, but it went through 

18 multiple, whatever you actually call it, you 

19 know, reconsiderations that took a huge amount 

20 of time and effort to do, where I think with 

21 some of these presumptions, and just general 

22 guidelines, it was very apparent very early on 
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1 either this should be an accepted claim or not.

2 And what impressed me was how much 

3 time it took to sometimes come to a decision. 

4 Which I don't think is good for anyone involved 

5 for such a protracted process.

6 CHAIR MARKOWITZ: Any further 

7 comments?

8 (No audible response.)

9 CHAIR MARKOWITZ: Okay. So, we're 

10 going to take a break for 15 minutes, which 

11 means we come back before four o'clock. We're a 

12 little bit behind our schedule so please be 

13 prompt. Oh, three o'clock. Three o'clock.

14 (Whereupon, the above-entitled matter 

15 went off the record at 2:41 p.m. and resumed at 

16 3:01 p.m.)

17 CHAIR MARKOWITZ: If everyone can 

18 take their seats, please. Okay. We're going to 

19 start off with, I think, a relatively short 

20 recommendation, number six.

21 In which we advised -- we recommended 

22 that the finding of two borderline beryllium 
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1 lymphocyte proliferation tests be considered to 

2 be equivalent of one constant BeLPT for the 

3 purposes of claims adjudication.

4 And the DOL's response was that it 

5 does not support this recommendation. The 

6 recommendation is inconsistent with the explicit 

7 statutory requirement that beryllium sensitivity 

8 is, established by an abnormal BeLPT performed 

9 on either blood or lung lavage cells. And 42 

10 U.S.C., they give reference -- which, Kevin, if 

11 you could just -- number six. Recommendation 

12 number six. There you go. That's it.

13 I'm reading the middle of that first 

14 paragraph. While the Board may be of the 

15 opinion that the BeLPT is not a perfect test or 

16 that false negative and positive BeLPT results 

17 can occur. DOEOIC is bound by the specific, 

18 clear, and unambiguous language of the governing 

19 statute.

20 In the Program's administration of 

21 Part E, the OWCP has adopted a limited number of 

22 exceptions to the statutory requirement for the 
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1 submission of an abnormal BeLPT. However, all 

2 of those limited exceptions are based on the 

3 presumed existence of an abnormal BeLPT that 

4 cannot, for scientifically accepted reasons, be 

5 obtained.

6 The Board's recommended presumption 

7 seeks to equate two borderline BeLPTs with an 

8 abnormal BeLPT, which cannot be done under the 

9 statute.

10 Okay. The floor is open for 

11 comments, questions? Dr. Welch?

12 MEMBER WELCH: So, maybe this is an 

13 absurd concept, but to me if something's not 

14 normal, then it's abnormal. So a borderline is 

15 abnormal.

16 And so it's a little bit of 

17 wordsmithing within the statute, which maybe the 

18 Department doesn't want to do. That's the only 

19 way I could see making it work. Because I do 

20 think the literature strongly supports the fact 

21 that if someone has repeated borderline tests, 

22 that's the equivalent in terms of its predictive 
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1 value for being sensitized as one single 

2 abnormal.

3 But it's whether you want to do

4 something that is a little bit of wordsmithing 

5 to make it work. But otherwise, I mean, 

6 obviously you're saying you can't do it because 

7 it's statutory. That's the only thing I can 

8 come up with.

9 CHAIR MARKOWITZ: Maybe if we can get 

10 the scientists to say somewhat abnormal instead 

11 of borderline. Dr. Redlich?

12 MEMBER REDLICH: Well, I think that 

13 there's already, as the response indicates, 

14 exceptions that that have been made. And some 

15 examples are given, such as if someone is on 

16 steroids. And so this could be another example 

17 of an exception for why there might not be a 

18 positive test. That's just a suggestion for how 

19 to deal with that scenario.

20 CHAIR MARKOWITZ: So if I understand, 

21 you're saying that a borderline result occurs in 

22 part because this person isn't able to develop 
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1 an abnormal result?

2 MEMBER REDLICH: Yes, if their immune 

3 system, for one of many reasons, may not be able 

4 to mount a sort of what is considered -- which 

5 is somewhat -- the cut-off between abnormal and 

6 normal for any test is somewhat arbitrary. But 

7 I think we do have other exceptions for 

8 situations where there is not a clear positive 

9 or abnormal result.

10 CHAIR MARKOWITZ: So the question is 

11 whether we could somehow -- Dr. Welch? Your 

12 card is up. Did you want to say something else? 

13 Or Dr. Friedman-Jimenez? 

14 MEMBER FRIEDMAN-JIMENEZ: I think to 

15 say that if it's not normal it's abnormal is too 

16 much of a generalization. It really depends on 

17 the specific test that you're talking about.

18 But clearly if you have a test where 

19 the biology enters into how -- how from the 

20 normal average it is, when a test is equivocal, 

21 it provides less negative evidence. Less 

22 evidence against a diagnosis then a normal test 
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1 would provide.

2 And in the label of diagnostic 

3 testing, you would have a likely ratio that 

4 would not be the same as either a normal test or 

5 an abnormal test. So I think it does give you 

6 some information based on the biology that 

7 Carrie is talking about.

8 What I think what we would really 

9 need to do is look at the literature and what 

10 has been reported. I don't know the literature 

11 on beryllium.

12 And if anyone has looked at the 

13 abnormal, the equivocal tests and if they 

14 behaved diagnostically in a different way than 

15 normal tests. So, I defer to people who 

16 actually know something about beryllium.

17 MEMBER WELCH: Well, just to -- just 

18 to -- it varies some good literature that looks 

19 at the predictive value of repeated borderline 

20 tests compared too within the lab normal.

21 And it does good. It gives you the 

22 same predictive value if you have repeated 
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1 borderlines.

2 However, the Department of Labor says 

3 they can't use that because the statute requires 

4 an abnormal BeLPT. So it's not about the 

5 predicted value of a borderline test. It's 

6 about how you interpret the test.

7 So, I think what Carrie's suggesting 

8 is that one could, in arguing on behalf of 

9 someone who has repeated borderline that then as 

10 a clinician you believe that that is the 

11 equivalent of a single abnormal would be to 

12 write a rationale.

13 Then the way we can write a letter 

14 saying this person's on steroids and that's why 

15 their test is normal. Could say they have an 

16 inadequate immune response. And that's why 

17 their test is borderline.

18 So that's something -- but that's not 

19 something that can be set by the Labor 

20 Department. It would have to come in from 

21 examining physicians, I think.

22 MEMBER CASSANO: You know, having 
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1 written policy based on laws for many, many 

2 years, usually a Secretary is given broad 

3 authority to interpret the law.

4 And I think if in many of these 

5 situations if we gave you a reason that two 

6 borderline LPG -- BeLPTs would be equivalent of 

7 an abnormal BeLPT, you know, I think you should 

8 be able to make that change without running 

9 afoul of the law.

10 You know, and we inter -- most 

11 agencies have the ability to interpret the law 

12 in a way that it's consistent with current 

13 scientific evidence.

14 And I think you're well within your 

15 purview unless your Secretary is not allowing 

16 you to do that kind of stuff.

17 CHAIR MARKOWITZ: Well, I just want 

18 to get back to Dr. Redlich's point about the 

19 exception that's made under Part B, of people 

20 who cannot, for a scientific reason they cannot 

21 develop an abnormal BeLPT.

22 Can we develop that kind of a 
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1 rationale? Do we know enough people who --

2 enough about people who essentially only form 

3 borderline abnormals to be able to create that 

4 case?

5 MEMBER REDLICH: Yeah. I mean, I 

6 think Dr. Welch just commented on that. That 

7 there is the literature that the predictive 

8 value was two borderline tests give the 

9 equivalent of an abnormal.

10 CHAIR MARKOWITZ: Well, I was 

11 referring to more like -- more mechanistic 

12 information or information about cell behavior. 

13 Not epidemiologic performance of BeLPT.

14 Do you know what I mean?

15 MEMBER REDLICH: I could look at 

16 that.

17 CHAIR MARKOWITZ: Yeah.

18 MEMBER REDLICH: I don't -- I think 

19 in all of the issues and recommendations, I 

20 don't think we could do one of the major points. 

21 I think it impacted relatively small number of 

22 people, so.
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1 CHAIRMAN MARKOWITZ: Okay. Okay. 

2 So, I -- you know, people have their name cards 

3 up. But I think they've already spoken.

4 So, unless there are any further 

5 comments, we're going to move on. And we're 

6 going to do recommendation number seven.

7 Yes, I'm sorry, Mr. Turner?

8 MEMBER TURNER: Yes, I just want to 

9 say that I've diagnosed with CBD, I was allowed 

10 to test and everything. They had a doctor, 

11 another doctor to fight me.

12 And they said that -- the other 

13 doctor said that it isn't there, the CBD. So 

14 sometimes it depends on the company doctors, you 

15 know, the other doctors.

16 CHAIR MARKOWITZ: Yeah. Okay. Thank 

17 you. So we're going to go into recommendation 

18 number seven and hold off on the occupational 

19 questionnaire.

20 Seven relates to the quality 

21 assessment of contract medical consultants. 

22 Which is also the topic of the subcommittee for 
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1 weighing medical evidence and the CMC and IH 

2 subcommittee.

3 So, I think I'll turn this over to 

4 Dr. Sokas. We're going to blend discussion of 

5 this recommendation with that committee's 

6 report.

7 MEMBER SOKAS: Dr. Sokas speaking. 

8 Yes, this is the recommendation that we came up 

9 with was based on our previous request for 

10 content related quality assessment audits.

11 And we had been told repeatedly that 

12 they were available on the website. And the 

13 only thing that -- at that point was available 

14 on the website was a February 2015 process 

15 related audit that basically was from the 

16 different regions showing what went out and what 

17 came back. But had no content quality 

18 assessment at all.

19 So, our two subcommittees, the 

20 weighing the medical evidence and the CMC/IH 

21 subcommittee had jointly requested a meeting of 

22 some of our members just to meet and greet with 
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1 IH, that would be a special vendor for the 

2 Program, just as kind of an informal.

3 So several of us on July 11 met with 

4 Mr. David Lovett and with Dr. Armstrong and with 

5 the Program leadership and Ms. Rhoads as a kind 

6 of informal getting to know them, getting to 

7 know their credentials.

8 And I'm going to preface this by 

9 saying that Dr. Cassano chairs the weighing the 

10 medical evidence committee and participated in 

11 both of the things I'm going to describe now.

12 And I would ask any of the members of 

13 either of those subcommittees to just jump in if 

14 there's something that you want to add or 

15 correct on anything I'm going to say right now.

16 So, as the recommendation response 

17 here notes, at that meeting, the scales fell 

18 from all of our eyes. And were realized that in 

19 fact the medical director was performing quality 

20 assessments on the -- on 50 randomly selected 

21 charts every quarter.

22 And that we had completely been 
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1 talking past each other. So each time we raised 

2 it in a Board meeting and were given that, you 

3 know, website.

4 The Program thought it was responding 

5 to us, and we were just getting frustrated. 

6 Which is why we came up with that recommendation 

7 even.

8 So, it was, in my mind, one of the 

9 most helpful small group meetings ever. Because 

10 I don't think we to this day would have figured 

11 out what was going on otherwise.

12 And so since that time, and everybody 

13 on the Board has seen it, and I think there have 

14 been -- the medical audits have been posted and 

15 we've had a chance to review them.

16 We then subsequently on October 23 

17 had a joint meeting of again, the two 

18 subcommittees. The two topics that were 

19 discussed and the two conclusions -- I'm really 

20 sorting this out -- that came out of that 

21 subcommittee meeting were that the work of the 

22 two groups was so congruent that really we 
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1 should recommend to the full Board that we be 

2 merged.

3 Or that, you know, this was obviously 

4 going to be a recommendation for the next 

5 constituted Board. But that it's somewhat 

6 artificial to distinguish between the work of 

7 the two committees. And we wanted to proceed 

8 together.

9 And then the second thing that came 

10 out of that meeting was we wanted to review the 

11 current quality auditing process. And so what I 

12 would like to suggest we do now, and if Kevin 

13 could put -- could switch to that, I'd like to 

14 switch us into a look at two particular 

15 documents.

16 One is the worksheet that we used for 

17 reviewing for causation. And I'd just like to 

18 go through and take us through it a little bit 

19 step by step and make some specific suggestions 

20 to it.

21 So, if we could actually go to the 

22 page preceding that. Which lays it out. And I 
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1 don't know if he can expand that a little 

2 better, or I can read it.

3 It's -- there's the objective. It's 

4 a quarterly audit to look at medical 

5 consultants' activity and their quality of their 

6 written reports.

7 It talks a little bit about the 

8 scope. But what I want to get into is the 

9 methodology. And I'm going to read you the 

10 second paragraph of the methodology.

11 And I mentioned where we may wish to

12 make some suggestions. And then there's a 

13 particular question that I wanted to go to.

14 So, the second paragraph in the 

15 methodology says, the reviewer will review case 

16 docu -- and the reviewer is Dr. Armstrong. It's 

17 the Medical Director.

18 The reviewer will review case 

19 documents submitted by the district office to 

20 the contractor via the client portal. The 

21 reviewer shall code case actions deemed to be 

22 appropriate Y, as a yes.
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1 The reviewer shall code case actions 

2 deemed inappropriate as an N. The reviewer will 

3 provide a thorough explanation of all items 

4 coded N.

5 In addition, any exceptional work is 

6 to be noted. The reviewer will utilize a manual 

7 score to record all responses.

8 So, I think based on all of our 

9 multiple discussions over the past year and a 

10 half, that really this is starting at step two. 

11 That reviewing what went out to the CMC should 

12 be the second step, not the first step.

13 And in fact the first step should be 

14 to review the entire case file to access whether 

15 what went forward from the CE was complete and 

16 appropriate. And have that as the initial step.

17 Now, as you'll see subsequently, the 

18 reviewer does have access obviously to the full 

19 case file and can use it. But that's not listed 

20 in the methods here.

21 And that's -- and that I think is, as 

22 Dr. Cassano has mentioned in the past, that is 
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1 problematic when we're not making full use of 

2 what the CMC should be doing. Which is actually 

3 reviewing the entire chart.

4 So then I think if we go to the next 

5 page that Kevin has, this -- this is fairly much 

6 a yes or no process. And you can read through 

7 the first one is, did the CMC provide a clinical 

8 history or summary?

9 Did the CMC answer each of the claims 

10 examiner's questions? Did the report contain 

11 rationalized medical conclusions? Did the CMC 

12 appropriately apply ‘‘at least as likely as

13 not’’ standard?

14 What I would like to suggest we focus 

15 on is this next question number five. Was the 

16 CMC medical opinion based on the accepted facts 

17 of the case as listed in the SOAF?

18 And so instead, I think that question 

19 really needs to be reframed. And again, this is 

20 a topic for us to discuss in terms of providing 

21 recommendations.

22 But that the real question is, was 
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1 the CMC's written medical opinion based either 

2 on formal DOL guidance and/or the latest 

3 scientific information? And if there's a 

4 discrepancy, how did the CMC handle it?

5 And did the CMC argue for the 

6 claimant? So those are the kinds of things you 

7 want to really have from a medical assessment 

8 for the quality of the audit.

9 And that would have picked up a lot 

10 of what we saw in some of the stuff that we 

11 reviewed, where you had CMCs who were off the 

12 ranch basically saying, oh COPD it's not related 

13 to anything but smoking. You know, that kind of 

14 thing.

15 And we've seen that. So, I think --

16 and the rest of it is just again, it's sort of -

17 - and I'd like us too then actually -- I don't 

18 know if we want to talk about this now.

19 But I would like us to go through one 

20 more document. Which is the -- if there's any 

21 comments or questions on this right now, we 

22 could entertain them.
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1 But I would like to have us look at a 

2 document that Kevin has to put up that you all 

3 have in your packets. That the Board has in its 

4 packets.

5 It's the September 2017 document from 

6 Mr. Vance to Ms. Leiton that basically is the 

7 fourth quarter 2016 CMC audit. Yeah?

8 MEMBER CASSANO: Before you go on --

9 oh, Dr. Cassano. Just as a point of 

10 clarification to this.

11 To put this all and to wrap this sort 

12 of all up, it sounds like we're all -- we're 

13 constantly harping on the same thing. Because 

14 we're constantly harping on the same thing.

15 The auditor cannot determine whether 

16 the CMC's decision is valid unless he knows what 

17 information the CMC made that determination 

18 based on. And you know, if the statement of 

19 accepted facts is lacking or missing or faulty 

20 in some way, then the CMC is going to come to a 

21 wrong decision.

22 And nobody -- you can't determine 
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1 that until you see the actual file. And that's 

2 the purpose for both the recommendations to this 

3 and the purpose for the recommendation of 

4 combining the two committees.

5 And you know, it's just hard to look 

6 at -- look at one part of a process and say that 

7 that part of the process is wrong when you don't 

8 -- or faulty, when you don't know whether what 

9 they based that part, that decision on was 

10 correct or not.

11 And that's our dilemma and that's why 

12 we keep coming back to this.

13 MEMBER SOKAS: Although to clarify, 

14 we -- the reviewer can have access to what was 

15 sent forward to the --

16 MEMBER CASSANO: Right.

17 MEMBER SOKAS: To the CMC. So was 

18 able to see what the CMC had to work with as 

19 well as what was available in the charts.

20 MEMBER CASSANO: And maybe a side 

21 question to that is, how does anybody audit what 

22 the CE is sending to the industrial hygienist 
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1 and the CMC to determine if that's acc -- if 

2 that's correct or accurate or whatever.

3 MEMBER SOKAS: And that wasn't part -

4 - that's not in an explicit step in this audit. 

5 But it's -- but we would like to -- I think we 

6 should add it as a suggestion step.

7 So this report reviews five cases 

8 that were plucked out of the 50 reviews for 

9 being problematic by the reviewer, by the 

10 medical reviewer.

11 And I just want us to kind of go 

12 through them. And I'm going to raise just a 

13 couple of questions.

14 My concern is a little bit that we 

15 have a process with the form that you just saw. 

16 The process really encourages missing the forest 

17 for the trees.

18 That you look at very specific, very 

19 small issues. And you don't really look at kind 

20 of bigger picture issues.

21 So we look at the first case. This 

22 is an individual who's had at least ten 
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1 different episodes of either basal cell or 

2 squamous cell carcinoma of the skin removed, in 

3 many instances apparently, in multiple 

4 locations.

5 And the CMC review was twofold. The 

6 first concern was that the AMA guidelines were 

7 not appropriately looked at for ratings. 

8 Because there's no loss of -- this individual 

9 suffers, they're saying no loss in their 

10 activities of daily living.

11 And you step back though and look at 

12 somebody who appears to be routinely and 

13 recurrently going in for these series of 

14 operations. And to say that that has no impact 

15 on their daily life seems to be a little myopic 

16 in terms of two perhaps rigorously applying the 

17 AMA guidelines.

18 The second note, which is really 

19 interesting. But, you know, was that in fact 

20 the CMC report used the wrong name and the wrong 

21 claim file.

22 But they, you know, were able to 
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1 figure it out anyway. So that was a little bit 

2 of a quality assurance thing there.

3 The second one that -- the second 

4 case I also found somewhat problematic. And 

5 again, Mr. Hanson's report is, I think, helpful 

6 because he does kind of comment on things a 

7 little bit more.

8 But this is a claimant who has two 

9 accepted conditions un -- well, three accepted 

10 conditions. But unspecified myeloid leukemia is 

11 one. And -- oh, wait. I'm looking at the 

12 wrong. Sorry, sorry, sorry.

13 Okay. There's an additional case. 

14 So, this one the issue was that the CMC 

15 specialty was not noted. And so that was the 

16 discussion there.

17 And this was about proportioning home 

18 care. So again, for some of this I didn't have 

19 a lot to, you know -- to comment on this.

20 But the one I wanted, there are two 

21 more that I want too really kind of raise as 

22 potentially along this same line. Of missing 
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1 the forest for the trees.

2 On number three, there is an 

3 individual who has metastatic lung cancer to the 

4 bone. And the reviewer was trying to use 

5 metabolic bone disease impairments to accept the 

6 impairment.

7 And was also concerned that the 

8 claimant was at -- was not stated to be at 

9 maximum medical improvement. And so Vance 

10 pointed out that if someone has a terminal 

11 disease, MMI is not really what you're worried 

12 about here.

13 And so, I mean again, this is looking 

14 too narrowly and precisely and missing some of 

15 the big picture, I think. And again, you know, 

16 that maybe a systematic issue with the way the 

17 form is developed in the slide and all of that.

18 There's another case on a home care 

19 review which I don't have any particular 

20 comments on. But this last one, number five, 

21 again there is a concern.

22 This is someone who has accepted 
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1 conditions that include acute myelo -- AML, 

2 acute myeloid leukemia and rheumatoid arthritis. 

3 And for assessing impairment, the 

4 thrombocytopenia and anemia were not included 

5 because they were not considered consequence 

6 illnesses for some reason of the AML.

7 Which again, without the entire

8 record would be hard to figure out why not. 

9 Unless it proceeded the AML.

10 But also the individual has 

11 rheumatoid arthritis. Which again could produce 

12 both of those conditions.

13 So the question is not the meticulous 

14 and rigorous application of the AMA guidelines, 

15 the question really is to step back a minute and 

16 say, wait a minute. Is this an accurate use of 

17 consequent medical conditions or a refusal to 

18 identify consequent medical conditions?

19 So, in general, I'm just making a 

20 general statement that I think both the form and 

21 the way the form is being applied is a little 

22 too narrowly focused on the specifics of -- of 
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1 the use of the AMA guidelines for a variety of 

2 reasons.

3 And not so much stepping back and 

4 looking a little bit more at the -- at the 

5 issues that I think those of us on the Board 

6 would like to see.

7 Which is, really do we think the CMC 

8 did a -- did a good job in terms of looking to 

9 make sure that thrombocytopenia and anemia were 

10 not consequent illnesses and shouldn't be 

11 included and that sort of thing. Right?

12 So, I think at some point what we 

13 probably would need to discuss and whether it's 

14 today or whether it's, you know, in the future, 

15 but what is the -- what's the approach that we 

16 think could be the most helpful in terms of, you 

17 know, looking at the current quality 

18 assessments.

19 I mean, there may be opportunities 

20 within OWCP because there are other positions 

21 within OWCP who could, you know, kind of get 

22 together and say, oh well, I would do this, or I 
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1 would do that, or I would do something else, 

2 that aren't so much dependent on the -- on the 

3 specifics of the EEOICPA Program as they are on 

4 the medical, you know, kind of looking at the 

5 big picture medical as well as the AMA 

6 guidelines.

7 So I think that's one potential 

8 action. Another potential action is to have a 

9 working group of the Board to offer to do some 

10 of that for, you know, kind of jointly reviewing 

11 some of these.

12 And maybe, you know, kind of checking 

13 to see what -- what -- but I think the goal in 

14 any of these quality assessments should be to 

15 have two or three people look at the same set of 

16 information and see whether they agree on what 

17 the appropriate outcome should be.

18 And whether it's members of the Board 

19 doing that on a spot check basis, or whether 

20 it's an internal process within OWCP that it's 

21 developed, but that would enrich the practice 

22 and make the quality assessment piece a little 
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1 bit more.

2 And so it needs two things. It needs 

3 changing the methods in the form I believe. But 

4 it also needs changing the process to make it a 

5 little bit more again, collegial, but, you know, 

6 having more than one set of eyes put on the 

7 thing.

8 And I -- this is actually kind of 

9 they may have other things to add and other 

10 members of our two groups may have other things 

11 to add.

12 MEMBER CASSANO: I don't really have

13 anything else to add. Just a point that what 

14 you are -- what the CMC, at least as far as we -

15 - you could discern, the CMC made the correct 

16 determination.

17 But it was the reviewer that took 

18 exception.

19 MEMBER SOKAS: No, no, no. I -- you 

20 can't tell that.

21 MEMBER CASSANO: You can't tell that?

22 MEMBER SOKAS: You can't tell that. 
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1 But I don't want to say that.

2 MEMBER CASSANO: Okay.

3 MEMBER SOKAS: What I want to say is 

4 that Mr. Vance then reviewed and reported up 

5 what was done and qualified and changed some of 

6 the recommendations based on that.

7 And throughout, it was very clear 

8 that if a -- if a determination was -- had 

9 already been made to the benefit of the claimant 

10 even though there was some concern about that as 

11 a quality improvement method, that did not go 

12 back to adversely impact the claimant.

13 So, very clear throughout that there 

14 was, you know, a careful vetting. That made 

15 sure -- and really walking it back a little bit.

16 I mean, the whole comment about, you 

17 know, you can see from the way it's presented,

18 there was a, we didn't do -- we didn't need to 

19 do anything about this one because, you know, it 

20 did adversely impact the claimant.

21 So that was the standard for actually 

22 going back and changing anything. This was 
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1 meant to report back to the contractor how to, 

2 you know, kind of pull up their socks and get 

3 the right name on the letter at least. You 

4 know, that kind of stuff.

5 CHAIR MARKOWITZ: I have a question. 

6 Steve Markowitz. I didn't see in a template 

7 where the reviewer records the specialty of the 

8 CMC.

9 But appears to have been addressed, 

10 at least in part on some of the claims in Mr. 

11 Vance's report. So do you see that?

12 Do you see where they reported who --

13 anything about the qualifications of the 

14 consulting person?

15 MEMBER SOKAS: I'm sorry, there are 

16 three different forms. And I only showed you 

17 the one form. And I don't know if it's in the 

18 other form.

19 But, there's one that looked -- so 

20 this one is just for causation. Which frankly 

21 the thing that I cared most about.

22 The other two forms are for maximum
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1 medical improvement for the percent impairment 

2 rating. And then the third one is for, do they 

3 really require -- see how much home care is 

4 really required, because that, as we all know, 

5 is a huge issue.

6 CHAIR MARKOWITZ: Steve Markowitz. 

7 So they -- you know, they provided us with all 

8 the audit sheets.

9 And I'm looking at all of them. And 

10 I --

11 MEMBER SOKAS: Even there --

12 CHAIR MARKOWITZ: Oh, I'm sorry. I'm 

13 sorry. In one of the four the area is the first 

14 question.

15 Was the appropriate medical 

16 specialist assigned? Although I'm not sure 

17 which type of review this was for.

18 But, I don't see why that question 

19 wouldn't apply to all the reviews. You know, 

20 for the review on impairment, the review on 

21 causation, and the like.

22 I was just wondering whether you --
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1 you detected --

2 MEMBER SOKAS: Yeah. I didn't look 

3 at that.

4 CHAIRMAN MARKOWITZ: Additional 

5 comments? Dr. Silver?

6 MEMBER SILVER: Please refresh my 

7 memory as to the selection process for the 50 

8 CMC reports that are being audited. We know 

9 they're distributed among the different program 

10 issues, causation, what not.

11 But, could a CMC slide through as 

12 long as a year without ever having their work 

13 audited?

14 MS. LEITON: They are randomly 

15 selected. I would have to look and see if there 

16 is, you know, if there's some that have been 

17 overly looked at and some that haven't been.

18 I'd have to check into that. But 

19 they are random in terms of the audit itself. 

20 Random based on the three different topics in 

21 this.

22 CHAIRMAN MARKOWITZ: Dr. Welch?
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1 MEMBER WELCH: If you're reviewing 

2 two hundred cases a year, it's -- I don't know 

3 how many CMCs there are, but it would seem like 

4 that wouldn't necessarily capture everybody.

5 Unless maybe there's less, you know, 

6 just one hundred physicians. And I don't know 

7 the answer to that.

8 MEMBER SILVER: So if I may, I think 

9 that we're down to some of the concerns we've 

10 heard from the claimants and the advocate 

11 community that there are some CMCs that keep 

12 making the same mistakes over and over again for 

13 many years.

14 And maybe a bigger sample needs to be 

15 drawn.

16 CHAIR MARKOWITZ: Dr. Boden?

17 MEMBER BODEN: So, I'm wondering if 

18 hearing what people have said, whether a sample 

19 that's completely random is the appropriate 

20 approach. Or whether there might be some 

21 complaint mechanism so that you could identify 

22 people that at least had had concerns expressed 
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1 about their reports.

2 Spend some of your time looking at 

3 those particular CMCs.

4 CHAIR MARKOWITZ: Dr. Cassano?

5 MEMBER CASSANO: I think maybe 

6 another way to look at this is rather then a 

7 random audit of let's say a quarter is to do 

8 something closer to a peer review type process. 

9 Where you actually -- where the -- each CMC has 

10 to submit a certain number every quarter.

11 And those then are reviewed. So that 

12 you know that you're capturing all of the CMCs.

13 And that maybe a better way to do it.

14 And then you can also at that point, 

15 the person that's looking at that looks at not 

16 only internal consistency, but also CMC to CMC 

17 consistency. So you get a better idea of how 

18 they're actually performing.

19 I think that's the -- no disrespect, 

20 but I think using the complaint system is --

21 anybody that's denied is going to complain. And 

22 therefore everybody is going to -- everybody's 
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1 going to have to get looked at.

2 MEMBER SOKAS: So one way -- this is 

3 Dr. Sokas again. One way we had kind of kicked 

4 around a little bit this morning that you might 

5 be able to do it is before, you know, just right 

6 after the examination itself, but before the 

7 determination is made, you know, send out one of 

8 those surveys that we all get when we go see our 

9 primary care physicians.

10 That, you know, just kind of ask, how 

11 did the process go? Were you treated with 

12 respect? You know, dah, dah, dah, dah.

13 And so you might be able to identify 

14 at least in the -- in the instance, you know, 

15 somebody that you have a little bit of concern 

16 about. And review them.

17 Although obviously it's not going to 

18 be the -- it won't be the --

19 MEMBER CASSANO: Unless everything is 

20 done on paper. Then there's no interaction 

21 anyway, so.

22 MEMBER SOKAS: Oh, you already --
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1 okay. Never mind. Never mind.

2 CHAIR MARKOWITZ: Ms. Vlieger?

3 MEMBER VLIEGER: To answer your 

4 question regarding the forms, only one of the 

5 forms does not have the question about an 

6 appropriate medical specialty. And it's the 

7 final review causation supplementation.

8 And that's the -- so the other ones 

9 do have it on it. Causation is the one where 

10 it's most crucial.

11 CHAIR MARKOWITZ: Thank you. Dr. 

12 Boden?

13 MEMBER BODEN: So Dr. Cassano, just 

14 to clarify my thought about the complaints. I 

15 was actually thinking about complaints from 

16 representatives and not from individual 

17 claimants as a possible way.

18 You know, if you've got a thousand 

19 complaints from one representative, you might 

20 not even look at them.

21 CHAIR MARKOWITZ: Ms. Vlieger?

22 MEMBER VLIEGER: The -- what I had 
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1 for a thought for how to collect complaints 

2 within the Department from people who actually 

3 see a high number of these reports, would be 

4 through the FAB office as they review the files.

5 And they do see a number of 

6 repetitive mistakes, the Final Adjudication 

7 Branch, which actually sees and goes through 

8 these.

9 CHAIR MARKOWITZ: Dr. Sokas? So, no. 

10 I'm sorry, Mr. Domina?

11 MEMBER DOMINA: I just have a 

12 question really. When you have a CMC in the 

13 program, once they're in, are they in for life?

14 Or do they have to reapply every two 

15 or three years? How does that work?

16 MS. LEITON: The CMCs themselves are 

17 selected by the contractor. They have various 

18 mechanisms in place for review.

19 Which I am not familiar with it off 

20 the top of my head. But we could look into 

21 that. But, they're not necessarily in for life.

22 I mean, if we identify problems, 
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1 we're going to relay those to the contractor. 

2 And the contractor is going to have to take 

3 whatever action is appropriate.

4 But again, there are certain rules or 

5 contractual obligations that they have. And I 

6 am not familiar with the contract that closely 

7 right now.

8 We can see what we can provide you 

9 after.

10 MEMBER DOMINA: Well the reason I ask 

11 is because under Washington State Workers Comp, 

12 they used to put them in for life. And that was 

13 problematic.

14 And so they have to reapply every 

15 three years to stay in the program. So I was 

16 just curious for comparison.

17 MS. LEITON: Yeah. It's not a 

18 lifetime thing.

19 MEMBER DOMINA: Yeah.

20 MS. LEITON: And the contract may 

21 change. I mean, you know, we have to re-compete 

22 the contract on a regular basis.
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1 MEMBER DOMINA: And then so on a 

2 regular basis for the contract to be competed, 

3 what is that time frequency? Three years? Five 

4 years?

5 MS. LEITON: I'm not -- I don't know 

6 off the top of my head. I'll have to look at 

7 it.

8 MEMBER DOMINA: Thanks.

9 CHAIR MARKOWITZ: Dr. Redlich?

10 MEMBER REDLICH: I just wanted to 

11 mention -- this is Dr. Redlich. I just wanted 

12 to bring up one or two reprisals we presented 

13 previously when we had reviewed that COPD part B 

14 cases.

15 So a week prior to coming out, we had 

16 reviewed about 80 Part B cases. And those 

17 included, I think it's slide three.

18 But those were the cases that we had 

19 reviewed. A mixture of BeS, CBD, and I just --

20 this discussion had reminded me of sort of what 

21 our conclusions were from reviewing these cases.

22 We agreed with a number of the 
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1 decisions that were made. I think the BeS were 

2 relatively straightforward.

3 And we had actually gone through and 

4 different members of the team had actually 

5 gotten a form and evaluated them. I say for the 

6 purposes of the Part B changed since the 

7 information we had, which was generally the 

8 summary documents rather than the original 

9 records were sufficient.

10 And I realize that would be different 

11 for other areas. But I think the common 

12 findings, that -- and I think that this -- the 

13 positive side I think that some of the concerns 

14 we found are easily adjustable by the 

15 recommendations we made.

16 As far as the sarcoidosis and CBD 

17 claim, I think the most common issue was the --

18 sort of misapplication or understanding of the 

19 sarcoidosis presumption.

20 And then the other was some issue 

21 about whether there was really the exposure when 

22 it seemed that it was relatively clear that 
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1 there was.

2 And I think in a number of the cases 

3 there was, you know, eventually there was a 

4 correct decision. It was just the time it took 

5 to get there.

6 And then the other thing that we did 

7 notice that I just wanted to mention was that we 

8 looked at 30 of the 60 cases had a CMC report. 

9 And as well as, you know, over half of them were 

10 the same CMC.

11 And I think everyone agrees who 

12 looked at these, is this particular CMC he did 

13 have appropriate credentials. But there clearly 

14 wasn't a relevance to this.

15 And you know, I think there was 

16 agreement among -- every case was reviewed by at 

17 least two of us that, you know, his was -- I 

18 think was -- accounted for almost all of the 

19 decisions that we disagreed on.

20 And so I'm not sure if the current 

21 review process has a way to pick up on something 

22 like that. I will say from my review that this 
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1 CMC would benefit from either additional 

2 training or maybe not, you know, to find an 

3 alternate CMC.

4 Because as again, in terms of his 

5 occupational expertise was limited. And so 

6 those were the major questions that, and 

7 conclusions I think that we came to from review 

8 of a pretty substantive number of cases.

9 CHAIR MARKOWITZ: Thank you. Dr. 

10 Sokas?

11 MEMBER REDLICH: And then the other 

12 thing that we did notice which I just wanted to 

13 mention was that we looked at 30 -- about 60 

14 cases had a CMC report. And of those over half 

15 of them are the same CMC.

16 And I think everyone agreed that this 

17 particular CMC, he did have appropriate 

18 credentials but there clearly was a bit of an 

19 attitude. And I think there was agreement, 

20 every case was reviewed by at least two of us, 

21 that his I think accounted for almost all of the 

22 decisions that we disagreed with.
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1 And so I'm not sure if the current 

2 review process has a way to pick up on something 

3 like that. 

4 I would say from my review that this 

5 CMC would benefit from either additional 

6 training or maybe to find an alternate CMC. I 

7 think in terms of his occupational expertise was 

8 limited. 

9 And so those were the major questions 

10 and conclusions that we came to from review of a 

11 pretty substantive number of cases.

12 CHAIR MARKOWITZ: Dr. Sokas.

13 MEMBER SOKAS: Just as a question I'm 

14 just wondering if -- so that sounds like a 

15 different, a change in the methodology of the 

16 causation question, that there might be another 

17 step or another question that could be added.

18 I'm trying to figure out if there's a 

19 way to tweak what's there that would allow that 

20 kind of -- and maybe just changing that one 

21 question to sort of amplify it a little bit 

22 might help. 
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1 It wouldn't show the pattern though. 

2 So I guess my question is -- gets more to some 

3 of the other discussion about how do you sample. 

4 Is random the way to go, or if you have a 

5 question about one record that you reviewed do 

6 you then want to maybe continue to sample that 

7 individual. 

8 I'm just looking for a way to 

9 operationalize what you just said.

10 MEMBER REDLICH: Dr. Redlich. The 

11 other thing we had done is Dr. Dement had put 

12 together a summary of the data each year of the 

13 number of cases under different conditions, 

14 those that were accepted, those that were 

15 denied.

16 And I think looking at that, the 

17 numbers are not so huge that one couldn't target 

18 the CBD denials. I think it would be a 

19 manageable thing to review.

20 And the lung cases may be somewhat 

21 different than the others. I think they may be 

22 easier to review.
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1 CHAIR MARKOWITZ: Dr. Welch.

2 MEMBER WELCH: I know when I was 

3 working doing quality assurance at a hospital 

4 there's only so many things you can look at. 

5 And that we would have departments pick a 

6 particular topic and change the topic around as 

7 a special topic.

8 Say let's say for example, I liked 

9 Dr. Cassano's suggestion of doing a peer review 

10 based. If we're looking at the CMC not 

11 qualifications but results, the CMC audit I 

12 think it would really make sense to make sure 

13 you're sampling all the different CMCs and that 

14 would then probably catch that question of what 

15 you'd seen.

16 But the other thing is to say well 

17 okay, in this quarter let's also add a review of 

18 lung disease cases, or add a review of 

19 particular target areas that would allow you to 

20 catch the same question in a different way, 

21 particularly if you're going back and adding the 

22 question for the causation cases whether the 
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1 statement of accepted facts from the claims 

2 examiner to the CMC reflected all the accepted 

3 facts that the medical reviewer would have 

4 wanted to go to have that there.

5 That's going to vary probably by 

6 diagnosis and complexity because some of the 

7 diagnoses are more complex. And to look at the 

8 way the whole system processes big number claims 

9 might be useful. So to look at COPD cases 

10 unless that's sufficiently covered, look at COPD 

11 cases, look at other lung disease cases. Not 

12 with every time but just a periodic evaluation 

13 so that there's different ways of picking the 

14 quarterly cases, both peer review, maybe random. 

15 The different types of evaluations but also the 

16 different diagnoses.

17 And I don't know whether your 

18 committee is going to come up with an array of 

19 choices that might make sense of the different 

20 kinds of quality reviews you could be doing.

21 MEMBER CASSANO: I just had a 

22 question. I'm looking at the forms and I'm not 
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1 seeing it.

2 The CMC's medical specialty that's 

3 reported on this, is this determined based on 

4 board certification, or is it just determined on 

5 what the contractor says the medical specialty 

6 of the person is?

7 There are lots of people that say 

8 they do occupational medicine and they'll write 

9 down on many forms that their specialty is 

10 occupational medicine and they really have never 

11 had any formal training at all in occupational 

12 medicine, especially this aspect of it.

13 They do a lot of worker's comp and 

14 that's relatively -- treating an injury is the 

15 same whether it's occupational or it's not 

16 except for some important pieces.

17 But this kind of occupational 

18 medicine is not something that somebody without 

19 appropriate training can do. So I was wondering

20 if we could answer that.

21 MS. LEITON: This is Rachel. We 

22 first of all require board certification. 
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1 Usually when we say a board certified orthopedic 

2 surgeon or pulmonologist we would expect that 

3 they be board certified in that specialty.

4 When the claims examiner refers a 

5 case they would ask for that usually if it's a 

6 pulmonologist or what type of specialty they 

7 want to have a look at the case file.

8 Beyond that in the way that the 

9 contractor looks at it I would have to look at 

10 the contract. 

11 MEMBER REDLICH: Dr. Redlich. I 

12 would just agree that I think it would be very 

13 feasible to do some targeted reviews.

14 Because from the cases we reviewed 

15 some were very reasonably determined. The 

16 beryllium sensitization ones we agreed with and 

17 you could easily target which areas would 

18 warrant further review and which seemed to be 

19 very appropriate.

20 CHAIR MARKOWITZ: Dr. Silver.

21 MEMBER SILVER: I want to go back to 

22 Les Boden suggesting that the authorized 
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1 representatives be a source of information about 

2 CMCs who might come under greater scrutiny.

3 I remember hearing about for lack of 

4 a better name Dr. Attitude from the claimant 

5 community months before this subcommittee found 

6 problems with a number of his or her work.

7 So I'm not exactly sure how the claim 

8 files that went to your subcommittee were 

9 selected. If it was a random selection process 

10 then the problem of CMCs with attitude may be 

11 big and broad.

12 If a random selection process turned 

13 up a repetitive problem with one claims examiner 

14 that suggests further random sampling -- I'm 

15 sorry, CMC, that if additional random samples 

16 were drawn and scrutinized by your committee it 

17 would show up again and again.

18 I don't want the doctor's name to be 

19 bandied about. Everybody is entitled to due 

20 process and I'm sure he or she isn't here. 

21 But the authorized reps should be 

22 listened to earlier in the process. 
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1 CHAIR MARKOWITZ: Steve Markowitz. I 

2 have a question. I noticed on Mr. Vance's 

3 review of Dr. Armstrong's work at the end it 

4 says that the contractor would be given the 

5 opportunity to respond in writing to each 

6 deficiency. 

7 So does QTC provide report back to 

8 all about the findings of the medical review?

9 MS. LEITON: I'm going to say I would 

10 expect that they would. I have to follow up 

11 with Mr. Vance to make sure we've gotten those.

12 CHAIR MARKOWITZ: The other question 

13 I have is when I look at 2017 the two reviews by 

14 Dr. Armstrong in reviews from your 42 cases and 

15 he profiled the deficiencies, I don't see any 

16 attempts to connect the results from the two 

17 reports. In other words to look for patterns 

18 above and beyond any given reporting period.

19 So if there's a problem in the 

20 earlier reporting period I don't see any 

21 decisions to see if that is still a problem six 

22 months later in the subsequent report.
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1 A broader time frame, but I still 

2 don't see that kind of assembly of information 

3 to kind of a bigger picture to see the judgment 

4 performance. 

5 MS. LEITON: So you're asking if we 

6 have a follow-up process for after the report to 

7 see what's been fixed and what's been done about 

8 it in QTC or within the --

9 CHAIR MARKOWITZ: In part. But if 

10 Dr. Armstrong detects a pattern of a problem 

11 does he look for that pattern six months later 

12 when he's doing his re-review of another 40 or 

13 42 cases?

14 MS. LEITON: He should be.

15 CHAIR MARKOWITZ: I don't see any 

16 evidence of that.

17 MS. LEITON: I don't think we have a 

18 documented process for it. It may be more 

19 verbal. But I will look into it.

20 CHAIR MARKOWITZ: Mr. Domina. 

21 MEMBER DOMINA: I guess it was me and 

22 Faye that actually brought up some of the issues 
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1 with a certain CMC. 

2 And it was, you know, I'm not a 

3 doctor or nothing, but when I go through and 

4 read stuff and you read attitude or however 

5 they're addressing it.

6 And so what caused further review is 

7 I only had five or six claims that Dr. Redlich 

8 asked me to review. So I started pinging every 

9 one of them that was sent to us randomly.

10 This individual had 18 of them. And 

11 it was a pulmonologist. 

12 And the other thing that bothered me 

13 is that, you can shut me down if I say something 

14 I'm not supposed to say, but I guess my issue is 

15 just from a good ol' boy's standpoint is what is 

16 an East Coast, very East Coast know about a 

17 uranium miner who are all west of the 

18 Mississippi.

19 And so for somebody to not see, 

20 probably never seen one in person. Because what 

21 bothered me about it, it reminded me of that 

22 black lung doctor at Johns Hopkins that approved 
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1 one case or something in like 40 years. He was 

2 a hired gun for the big coal companies. 

3 And so I guess maybe I look at it a 

4 little bit different way.

5 But when I see something in there and 

6 the way in my opinion disrespected the workers 

7 it's very problematic for me because I am a 

8 worker.

9 CHAIR MARKOWITZ: If you had your 

10 card up I'm going to assume you want to speak. 

11 Ms. Vlieger.

12 MEMBER VLIEGER: Just to follow on. 

13 Kirk and I met because we needed to review our 

14 cases and then we found that this commonality 

15 existed. So we reviewed all the cases on the 

16 disks that were sent to us, not just our two to 

17 five cases we were assigned.

18 We did not look for this evidence, we 

19 just found it. And so we tabulated all of the 

20 physicians that were sent claims of the ones 

21 that we were sent to review, the committee was 

22 sent to review. And then we found this 
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1 incidentally.

2 We had heard among the claimant 

3 community that this was going on, but I didn't 

4 set any stock by it because there wasn't numbers 

5 to prove it. 

6 But then when we saw these numbers, 

7 then all the claimants that we had been hearing 

8 from, it became quite evident that this 

9 particular CMC was being sent this particular 

10 type of claim and his usual answer was no. And 

11 so that's why it was really disturbing and why 

12 we felt we had to report it to the committee.

13 CHAIR MARKOWITZ: Dr. Cassano.

14 MEMBER CASSANO: Another question. 

15 How are these kinds of issues with -- when the 

16 CMC errs, like they find an error. Obviously 

17 that goes back to the contractor. But how is 

18 this reflected in the performance standards in 

19 the contract? Do you know that offhand or not?

20 MS. LEITON: I don't know that 

21 offhand.

22 MEMBER CASSANO: Because that would 
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1 be interesting to see if there is some type of 

2 recourse for the agency to be able to say 

3 whatever contractor you are your people need to 

4 get better at this so that -- otherwise we're 

5 going to terminate you.

6 MS. LEITON: I mean there are 

7 definitely mechanisms for quality evaluation and 

8 reporting that they have to do to us and things 

9 like that. But again I don't have the contract 

10 in front of me.

11 MEMBER CASSANO: But these issues 

12 are, most when I've seen those performance 

13 standards they're very check off the box kind of 

14 thing. Is it the right name and the right 

15 person and the right disease and all that sort 

16 of stuff rather than these more squishy for lack 

17 of a better term issues about how the physician 

18 comes to their decision and if they seem biased 

19 in any way.

20 That's hard to determine on a check 

21 sheet. 

22 CHAIR MARKOWITZ: I think before we 
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1 move on, so a question for Dr. Sokas and Dr. 

2 Cassano. We need to move on to the 

3 recommendation number 7 as it relates to this, 

4 but was there something else you wanted to 

5 discuss before we move on to that 

6 recommendation?

7 MEMBER SOKAS: No. Really I think 

8 the suggestion to change the form itself to 

9 include both the methodology change that the 

10 reviewer would review the whole record to add in 

11 the part about whether the CE sent the 

12 appropriate information.

13 And then expanding question number 

14 five. So those specific changes in the form we 

15 can craft.

16 And then the other piece was -- and I 

17 think we got a lot of good discussion today 

18 about providing a number of alternatives for 

19 improving the quality review process that we can 

20 then formulate and have as part of a phone call 

21 later on.

22 CHAIR MARKOWITZ: So I have a 
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1 question. Our chartered mission, task number 4 

2 relates to this and we are supposed to advise 

3 the Secretary on, quote, the work of industrial 

4 hygienists, staff physicians and consulting 

5 physicians of the Department of Labor and 

6 reports of such hygienists and physicians to 

7 ensure quality, objectivity and consistency. 

8 So we've just looked at -- referred 

9 to the medical director's reports. Have we done 

10 a sufficient review of those and the process 

11 that we can -- that we are comfortable with the 

12 quality, objectivity and consistency.

13 MEMBER SOKAS: I think that's for the 

14 next board. 

15 (Simultaneous speaking.)

16 MEMBER SOKAS: I don't mean to be 

17 flip about it. This is Dr. Sokas. I think the 

18 answer is I think we can come up with some 

19 recommendations now based on what we have seen, 

20 but between now and next month I don't think 

21 we're going to come up with what you're 

22 suggesting which is a full review of everything. 
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1 I think we're going to come up with 

2 some intermediate steps maybe, but not the big 

3 this is our report back on all of this.

4 CHAIR MARKOWITZ: Okay. My point 

5 wasn't that we should accomplish this by 

6 February, but that it should definitely be on 

7 the radar.

8 MEMBER CASSANO: At the moment though 

9 we do not have enough information for I think 

10 all the reasons we went through to be 

11 comfortable with the objectivity and the quality 

12 of the reports.

13 CHAIR MARKOWITZ: Of the medical 

14 director's reports.

15 MEMBER CASSANO: Are you talking 

16 about the medical director reports or the CMC 

17 reports?

18 Or the audits? I don't think these audits 

19 provide us with enough information yet to 

20 determine the objectivity and quality, medical 

21 quality of the CMC reports.

22 MEMBER SOKAS: And I don't think we 
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1 had actually used that language to frame what we 

2 were doing. We were mostly responding to our 

3 recommendation 7 in trying to move forward on 

4 it.

5 CHAIR MARKOWITZ: Okay. So I just 

6 think it should be -- whatever product we have 

7 it should be there. If we haven't done it, 

8 fine.

9 So we're going to move to the 

10 recommendation unless there are any last 

11 comments. 

12 MEMBER REDLICH: Dr. Redlich. Just 

13 quickly though I think it is clear from the 

14 limited review we've done to date that this is 

15 an area that needs further review.

16 And I think it just also highlights a 

17 point that has been made. And I see this 

18 perspective living in the pulmonary community 

19 that most pulmonologists don't really deal with 

20 occupational diseases. That I guess is just 

21 something that the DOL should be aware of in 

22 terms of selecting pulmonologists.
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1 CHAIR MARKOWITZ: Okay, so let's move 

2 on. Recommendation number 7. It's requesting 

3 that DOL provide the board with resources to 

4 conduct a quality assessment of a sample of 50 

5 contract -- I'm sorry.

6 MEMBER SOKAS: I'm sorry. So Steve, 

7 I think -- I'm sorry, this is Dr. Sokas 

8 speaking. I think that whole discussion was our 

9 attempt to respond to OWCP's response to that 

10 recommendation. 

11 So we're in the process of saying

12 okay, so let's rethink -- so what we're talking 

13 about is let's rethink the auditing procedures, 

14 let's rethink what are options for peer review 

15 whether it's board members doing it.

16 But I had thought that the response 

17 to this was it's already taken care of and our 

18 response to that is no, but this is the way we 

19 want to approach it. Not necessarily going back 

20 to the original recommendation. 

21 That was made prior to understanding 

22 that there was any kind of quality assessment 
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1 going on. We had no idea that these were being 

2 conducted back when that recommendation was 

3 made. So I think that's an 

4 outdated recommendation we don't need to spend 

5 any time on right now.

6 CHAIR MARKOWITZ: I would disagree 

7 and I'll tell you why, but if there's other 

8 people who want to speak. 

9 One of our chartered tasks is to 

10 advise on the work of industrial hygienists and 

11 staff physicians and consulting physicians of 

12 Department of Labor and reports of such 

13 hygienists and physicians to ensure quality, 

14 objectivity and consistency. 

15 So I don't know why we would entirely 

16 rely upon the staff physician, the medical 

17 director, his review of claims as the total 

18 basis of our willingness to ensure that the 

19 claims, that the CMC work and the IH work is of 

20 quality, objectivity and consistency. 

21 So unless I'm missing something.

22 MEMBER SOKAS: You're missing 
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1 something. This is Dr. Sokas again.

2 No, so the next steps I believe we 

3 were proposing was that we would now recommend 

4 changes to that process and an approach that 

5 either through some alternative mechanisms for 

6 reviewing the reviewer. 

7 So it's not what you just said. Now, 

8 it may be that some of that original 

9 recommendation could find its way back into 

10 that, but I think the original recommendation 

11 did recognize what was currently happening. 

12 We have to see what was happening and 

13 then adapt our recommendation based on that.

14 CHAIR MARKOWITZ: Steve Markowitz. 

15 So the idea is for an independent look at the 

16 same claims that the medical director is looking 

17 at and then compare.

18 MEMBER SOKAS: That's right, yes.

19 CHAIR MARKOWITZ: Does that address 

20 the issue of consistency?

21 MEMBER CASSANO: I think that's 

22 something we need to build into the new process 
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1 is how do you address consistency and 

2 objectivity as well as accuracy if there such a 

3 term accuracy in developing an opinion. 

4 I think that all has to be built in. 

5 What we're doing is as Rosie said this was 

6 written before we knew that the medical director 

7 was actually doing the audit. 

8 So what we just discussed was the 

9 fact that okay, we looked at some of the medical 

10 director audits and we find this process 

11 insufficient as well as having no process at 

12 all, and now we need to move forward and develop 

13 a process that actually meets the requirement of 

14 what our mission in that subcommittee is.

15 CHAIR MARKOWITZ: Dr. Boden.

16 MEMBER BODEN: So I'm trying to think 

17 about this as if I was trying to design a 

18 research project whose goal was as stated in our 

19 terms, our charter.

20 And first of all, it occurs to me 

21 that we've been talking about different 

22 objectives as we've gone through this discussion 
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1 one of which is sort of finding people who 

2 really are individuals who aren't doing a good 

3 job.

4 That's not I think exactly what our 

5 charter says that we should do. Our charter is 

6 talking about sort of a population view of where 

7 the population now is CMC reports and we want to 

8 figure out whether they're good or not.

9 What concerns me is of course that 

10 there are different kinds of CMC reports. 

11 You've got your four different evaluation forms.

12 And that within each of those there 

13 are different specialties, different diseases 

14 that are being looked at.

15 And my sense is, I haven't sat down 

16 and tried to figure it out, that that's actually 

17 a fairly -- that would require a fairly large 

18 population of reports to actually answer the 

19 question that's posed to us in the charter.

20 And that we probably don't have the 

21 bandwidth to do that ourselves. And so there's 

22 a question in my mind now about how one might go 
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1 about trying to answer those questions.

2 I think that the reports that are 

3 done now are focused on finding specific 

4 problems and giving feedback on those specific 

5 problems to the contractor so that they can get 

6 individuals to do things like say whether or not 

7 they have a conflict of interest. 

8 But I think what we're talking about 

9 is a bigger project, potentially a very 

10 important project but I don't know where the 

11 resources would come from to actually do that.

12 We might be able to focus on a 

13 specific subset of let's say causation cases, a 

14 pulmonologist or something like that, and then 

15 be able to get enough cases to look at so that 

16 we'd have a sense of overall how is the 

17 contractor doing. But I'm not sure we can do 

18 more than that.

19 CHAIR MARKOWITZ: Just to clarify. 

20 Steven Markowitz. So you began by saying if you 

21 were designing a research project. I don't 

22 think the program is necessarily all that 
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1 interested in the research.

2 But the question then is the proper 

3 evaluation in support of this task, does it 

4 encompass the same kind of parameters you just 

5 mentioned.

6 MEMBER BODEN: I thought of that 

7 question as a researcher. I don't think of this 

8 as a research project. I think of it as an 

9 evaluation project. 

10 But you still have to have enough 

11 cases to look at within a particular spectrum of 

12 cases to be able to do the evaluation.

13 And a statistician looking at that 

14 would use the same power calculations as he 

15 would use for a research project to figure out 

16 how many you would need.

17 MEMBER FRIEDMAN-JIMENEZ: I think one 

18 way to evaluate this that would give us -- we 

19 could evaluate the director by just doing a 

20 random sample of audits, of reviews of the same 

21 cases that he had reviewed. 

22 That would give us some insight into 
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1 the CMCs also depending on how many we've 

2 reviewed of each CMC.

3 So the question is what we really 

4 want to evaluate, the director or the CMCs or 

5 both.

6 But I think this would have to be 

7 something that would be done by contracting 

8 someone else to re-review blindly those same 

9 cases.

10 CHAIR MARKOWITZ: I would just point 

11 out that task number 4 of the board is both 

12 assessing the staff physician and the CMC as 

13 well as by the way the industrial hygienist 

14 about whom we haven't spoken at all. And we 

15 need to put that on the radar because we have 

16 failed to do that. We have not discussed at all 

17 unless I forget how we evaluate the industrial 

18 hygiene function. I don't know whether it's 

19 staff IHs or the contractors, but regardless we 

20 haven't done that.

21 MEMBER BODEN: So, I think what we 

22 can do is to think about designing an 
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1 evaluation. I don't think we have the time to 

2 actually do an evaluation so that was my only

3 comment except to say I guess it matters that we 

4 have way more physicians on the board than 

5 industrial hygienists.

6 MEMBER SOKAS: And I did want to kind 

7 of push back a little on that. If you broadly 

8 interpret evaluate the work of the industrial 

9 hygienist in fact the recommendation that the 

10 industrial hygienist should be able to speak 

11 with the claimant came out of that particular 

12 look at what the industrial hygienist should be 

13 doing. 

14 CHAIR MARKOWITZ: Steven Markowitz. 

15 But that's not the same as evaluating their 

16 work.

17 MEMBER SOKAS: So it's a different 

18 interpretation of the word evaluate, right? I 

19 mean, you're right, it's not the same, but when 

20 we looked at that task the first thing that came 

21 up wasn't are they doing the right job it was 

22 how can they do their job better. And that was 
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1 the response to that.

2 CHAIR MARKOWITZ: And that perhaps is 

3 more important but it's not looking at 

4 objectivity or consistency. Dr. Welch.

5 MEMBER WELCH: Well, also I think the 

6 other thing to remember is that the CMC process 

7 has been going on for a long time, but adding 

8 industrial hygiene review to a large number of 

9 cases or all the cases where there's going to 

10 need to be an exposure determination is a new 

11 addition.

12 I mean, it's good to be able to do 

13 some assessment of that as we go forward so that 

14 things don't get off on the wrong track, but 

15 most of the cases that we reviewed when we 

16 started this, when the board started its work 

17 didn't include industrial hygiene opinions 

18 because that was only just being implemented. 

19 So we have less experience with it. 

20 So what we saw in the file reviews was a lot of 

21 issues related to CMCs so I think that's what 

22 drew the initial focus in that direction.
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1 CHAIR MARKOWITZ: I forgot to mention 

2 by the way our public comment period begins in 

3 15 minutes. If there are people who want to 

4 make public comments you need to sign up with 

5 Ms. Rhoads.

6 MR. FITZGERALD: Who just walked out 

7 of the room. But when she comes back in please 

8 see Carrie Rhoads over here at the desk if 

9 you're interested in speaking.

10 MEMBER CASSANO: One more question. 

11 Vis-a-vis the discussion is there a similar 

12 audit process of the industrial hygiene function 

13 as there is for the CMC?

14 MS. LEITON: We just started with the 

15 IH contractors in 2016 so we have not developed 

16 that yet. I just made a note to make sure and 

17 see what -- they may have done some work on it 

18 that I'm unaware of, but it's definitely 

19 something that will be followed up on.

20 MEMBER CASSANO: If you need our 

21 assistance in determining how to establish that 

22 audit function I think if we get it right from 
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1 the get-go and we're happy with the function 

2 from the get-go we won't be coming back to this 

3 in a year and saying well, we have to fix 

4 something. 

5 MS. LEITON: Makes sense. Thank you.

6 CHAIR MARKOWITZ: So are there any 

7 final comments as we're going to take a few 

8 minutes break? Okay, good. So we're on break. 

9 We'll resume promptly at 4:30 and start the 

10 public comment session.

11 (Whereupon, the above-entitled matter 

12 went off the record at 4:15 p.m. and resumed at 

13 4:30 p.m.)

14 CHAIR MARKOWITZ: It's 4:30. We're 

15 beginning the public comment period. We're 

16 going to turn it over in a minute to the 

17 moderator.

18 We have 90 minutes. We have 17 

19 people who have requested to speak so that's 

20 five minutes per person.

21 And it's hard to stick to five 

22 minutes per person which means sometimes I have 
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1 to suggest that it's time for you to wrap up. 

2 And I don't mean anything personal by it and 

3 we'd all like to hear more but we have our time 

4 limits here. So we really need to ask you to 

5 stay to five minutes.

6 Also just by way of reminder this is 

7 not really a question and answer session. You 

8 may have questions. The board isn't really 

9 going to answer those questions. We'll take 

10 note of questions but we're not really going to 

11 answer the questions during the public comment 

12 period. Maybe afterwards or tomorrow if you're 

13 still around.

14 So let me turn it over to the 

15 moderator who has some instructions I think to 

16 include people on the phone.

17 THE OPERATOR: Yes, this is the 

18 operator. Are you ready for me to put you live 

19 with the other parties?

20 CHAIR MARKOWITZ: Yes.

21 THE OPERATOR: Okay. One moment, 

22 please. And I do just need to let them know 
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1 we're recording this portion.

2 Thank you all for standing by. At 

3 this time I do want to inform all the 

4 participants on the phone line that your lines 

5 are in a listen only mode until the public 

6 comment section.

7 We are also recording today's 

8 conference. If you have any objections you may 

9 disconnect now. And Dr. Markowitz, you may go 

10 ahead.

11 CHAIR MARKOWITZ: Okay. Our first 

12 speaker is Michelle Jacquez-Ortiz from Senator 

13 Udall's office. Welcome.

14 MS. JACQUEZ-ORTIZ: Thank you, 

15 Chairman Markowitz and members of the board. My 

16 name is Michelle Jacquez-Ortiz and I've had the 

17 privilege of working for a United States Senator

18 for almost two decades, since before EEOICPA was 

19 enacted and have watched the senator over the 

20 years.

21 I will say that he has a lot of 

22 important issues that come before him but this 
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1 one, RECA and this program are very near and 

2 dear to his heart.

3 He shared a statement that I wanted 

4 to take an opportunity to read into the record.

5 Thank you Chairman Markowitz and 

6 members of the board for holding this hearing in 

7 Santa Fe, New Mexico. Coming here allows 

8 claimants from northern New Mexico who have 

9 become sick through exposure to radiation or 

10 other toxic substances to talk to you in person 

11 and to tell you their stories in their own words 

12 and to give you their suggestions based on 

13 personal experience.

14 Thanks also to members of the board 

15 for bringing your expertise to bear on this 

16 important issue and for your hard work.

17 My history of fighting for 

18 compensation for U.S. Department of Energy 

19 employees injured by radiation or other toxic 

20 substances through work dates back many years.

21 As a member of the United States 

22 House of Representatives I hosted the first 
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1 public hearing in New Mexico along with my 

2 Senate colleague Jeff Bingaman to gather 

3 testimony from workers from Los Alamos National 

4 Laboratory who became sick as a result of their 

5 work at the lab.

6 The stories we heard from these 

7 patriots were heart-wrenching. In 2000 I 

8 sponsored a bill in the House to provide 

9 compensation and testified before a House 

10 subcommittee for the pressing need for just 

11 compensation.

12 Since Congress passed the Energy 

13 Employees Occupational Illness Program Act in 

14 2000 I have worked hard to make sure that the 

15 program is effectively implemented.

16 There are two issues I would like to 

17 bring to the attention of the board. 

18 First, I followed the work of the 

19 board closely and appreciate that each of you 

20 takes seriously your responsibility to make 

21 recommendations to the U.S. Department of Labor.

22 DOL should prioritize board 
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1 recommendations intended to assist claimants. 

2 The community of claimants from the Cold War era 

3 are getting on in years. Many have already 

4 waited too long for their claims to be 

5 evaluated.

6 Board members who volunteer their 

7 time would appreciate that their high-level work 

8 receive due consideration. 

9 I am pleased that Ms. Julia Hearthway 

10 has been appointed director of the Office of 

11 Workers Compensation Programs and I am hopeful 

12 that we will see timely responses to DOL.

13 Second, the board manages a labor14 intensive workload, reviewing and making 

15 recommendations on complex occupational health 

16 science issues.

17 I am concerned that this workload

18 strains the board's limited resources and 

19 suggest that DOL strongly consider providing the 

20 board with a technical contractor to assist it.

21 The National Institute of 

22 Occupational Health and Safety, for example, 
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1 retains a contractor to support its advisory

2 board. It is critical that the board's work is 

3 completed in a timely manner and DOL should make 

4 sure that the board has adequate support to 

5 fulfill its duties.

6 Thank you for considering my 

7 comments. I appreciate the board's hard work on 

8 these issues. Ensuring that DOE workers who 

9 were unknowingly exposed to harmful substances 

10 while working to keep our nation safe is 

11 important work. 

12 Sincerely, Tom Udall, United States 

13 Senator.

14 And we are sending an electronic copy 

15 so it gets posted online as well. Thank you.

16 CHAIR MARKOWITZ: Thank you very 

17 much. The next speaker will be Ms. Martha 

18 Trujillo.

19 MS. TRUJILLO: Good afternoon, Mr. 

20 Chair, members of the board. My name is Martha 

21 Trujillo. I live in Pojoaque, New Mexico which 

22 is just 25 miles north of Santa Fe.
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1 I'm here. My father passed away 10 

2 years ago. He and my mother both fought for a 

3 number of years to get compensated. And about 

4 one month after my father passed away he did 

5 receive his compensation.

6 That's 10 years ago and I would 

7 gladly give back every penny just to see my dad 

8 here again. 

9 That said, I hope I don't get too 

10 emotional here but this is a very emotional 

11 thing to talk about. And to represent many 

12 people in our community who are now struggling 

13 and trying to get compensation.

14 I'm here with Mr. and Mrs. Valdez. 

15 They are my neighbor and they were lifetime 

16 friends of my parents. 

17 Mr. Valdez was a custodian who worked 

18 alongside my dad for 30 years. And it has been 

19 a number of years that the Valdez's have been 

20 trying to get compensation.

21 And it's been a number of years that 

22 they have been receiving letters saying that 
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1 they don't have enough proof and they don't 

2 think that now our last letter that we got from 

3 trying to meet a deadline for 30 days before we 

4 are totally denied.

5 So as I said earlier Mr. Valdez spent 

6 30 years working alongside my dad. And the 

7 other two people who worked alongside my father 

8 also passed away and they were compensated. 

9 They were compensated about three or four weeks 

10 after they passed away and so their widows 

11 received the money.

12 This is not a great story for Mr. 

13 Valdez to hear because his wife now is thinking 

14 does my husband have to pass away before I get 

15 compensated, or if he would ever get 

16 compensated.

17 We live in Pojoaque. It's a rural 

18 area. Many of the individuals who worked at the 

19 lab from this area gave their heart and soul to 

20 their job. 

21 My father, there were 12 kids in our 

22 family and as a custodian he knew how important 
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1 that job was for him to go back and forth on top 

2 of that hill.

3 Again, I would give back every penny 

4 just to have another 10 years with my dad.

5 But I thank you for the hard work 

6 that you're doing. I wish that there were more 

7 individuals who could be representatives who 

8 could help individuals such as myself who are 

9 just trying to figure out the paperwork that is 

10 needed.

11 I appreciate your comments, Kirk, 

12 about how the workers are in need of something 

13 and should be compensated today while they are 

14 alive. Thank you. 

15 CHAIR MARKOWITZ: Thank you. I 

16 failed to mention that there are some resources 

17 for people who have questions or issues with 

18 claims that they want to address. The 

19 ombudsman's office is represented here. DOL 

20 district office or resource center is here as 

21 well as the former worker medical screening 

22 program for these sites here in New Mexico.
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1 So for those in the audience here who 

2 want to avail themselves people are here to 

3 speak to. So thank you very much.

4 MS. TRUJILLO: And I thank you for 

5 that. I will tell you that we have gone through 

6 two advocates who have said there's no chance of

7 us being able to get compensated.

8 We have been through the Johns 

9 Hopkins. We have been through a number of 

10 private doctors who do not understand how to 

11 send the reports to help us. 

12 So we've been to a number of people 

13 and advocates and have not been able to move 

14 forward. But I do thank you. 

15 CHAIR MARKOWITZ: Thank you. Mr. Tim 

16 Lerew.

17 MR. LEREW: Dr. Markowitz, fellow 

18 board members and the very good representation 

19 that we have from the public that we have here 

20 today.

21 My name is Tim Lerew. I have the 

22 honor this year to be the chair of the Cold War 
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1 Patriot Executive Committee. 

2 Two weeks ago it was my pleasure and 

3 the pleasure of some of the folks in the room 

4 today to take part in more than 10 observances 

5 at the National Day of Remembrance on or around

6 October 30.

7 That day was chosen because that was 

8 the day the original Energy Employee 

9 Compensation Act was signed into law taking 

10 effect the following year.

11 We now have 55,000 members throughout 

12 the country, but I realize that's just a small 

13 portion of what may be close to 1.5 million 

14 individuals and the number keeps on getting 

15 revised upwards.

16 Talking with Gail out at Hanford 

17 nearly 400,000 in eastern Washington from World 

18 War II until now have worked in the nuclear 

19 weapons complex.

20 So maybe close to a million and a 

21 half individuals have been affected by their 

22 national security work.
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1 Let me start and I'll probably stop 

2 with it as well. Our sincere thanks to the 

3 brave men and women who often in quiet and 

4 secrecy with their L and Q security clearances 

5 sacrificed their health and in many cases their 

6 family member's lives to provide for our 

7 collective national security which has also kept 

8 the peace since the end of World War II.

9 Specifically to the matters that have 

10 been before you today I'd recognize and 

11 encourage each one of you as board members to 

12 take Martha's story and others that you hear 

13 every day and every week and use that as 

14 strength and power to recommit to the next two 

15 years that you might be able to offer this 

16 board's work.

17 The work that you started, I think I 

18 was with you for those initial meetings in 

19 Washington, D.C. about 20 months ago. It's 

20 important work. It's hard. It's slow. But 

21 I've seen progress.

22 Department of Labor asked for your 
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1 input and they've received it over the last 20 

2 months. If you're able to continue and offer 

3 the continuity of service and continue the good 

4 work that you started you will continue to see 

5 progress from your good efforts.

6 Specifically I'd like to speak very 

7 briefly to presumptive causation. As Dr. Boden 

8 and others have noted on the board today the 

9 positive effects of presumptive causation could 

10 help many with pulmonary and many other 

11 illnesses.

12 But of course when you have a 

13 positive correlation you sometimes get the 

14 negative where maybe a claims examiner might say 

15 you don't meet that criteria so you're not going 

16 to be compensated.

17 We need to all be on guard for that. 

18 But I have seen a willing partner from 

19 Department of Labor for many of their 400 claims 

20 examiners to take the excellent input that 

21 you've made and continue to carry that forward. 

22 We've already seen it reflected at 
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1 least in some part in the policy and procedure 

2 manuals that have been going forward.

3 And finally, your work is made 

4 possible through some of the political work. 

5 And really these people that are represented 

6 here through legislation.

7 The National Defense Authorization 

8 Act. An amendment thereof that made this board 

9 possible. It happens every year in Congress.

10 We continue to work at Cold War 

11 Patriots to advocate for legislative changes 

12 when those are necessary to constitute boards 

13 like yours or when it's appropriate to maybe 

14 help Labor and other agencies with some of the 

15 details of how they interpret legislation and 

16 make things go forward. 

17 So let me conclude with our thanks to 

18 the brave men and women who've made our 

19 collective national security and our global 

20 security possible.

21 And thank you for the hard work that 

22 you do as volunteers to honor those men and 
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1 women with the work you do today and every day 

2 going forward. Thank you. 

3 CHAIR MARKOWITZ: Thank you. Mr. 

4 Raymond Singer. So I'm not sure you were here 

5 for the introductions so the comments are 

6 limited to five minutes if that's all right. 

7 MR. SINGER: Hello. I'm Raymond 

8 Singer. I'm a doctor of neuropsychology and I 

9 specialize in neuropsychology, neurotoxicology 

10 and forensic applications.

11 I've seen some of the workers at Los 

12 Alamos after they've been injured and I've seen 

13 other energy workers including workers at 

14 Hanford Nuclear Works.

15 And I'm really not sure exactly what 

16 you would like me to talk about today, but I 

17 could talk about the types of injuries that 

18 neurotoxicity can cause which really are any 

19 injury to the psychological processes or 

20 neurological processes.

21 This could include anxiety, 

22 depression, psychosis, panic attacks, learning 
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1 disabilities, memory disorder, and/or 

2 neurological degeneration that can be diagnosed 

3 as dementia, Alzheimer's disease, Parkinson's 

4 disease, other motor disorders.

5 Anything that the brain supports can 

6 be damaged by neurotoxic substances. Any toxic 

7 substance that gets into the bloodstream that 

8 travels to the brain or gets translocated 

9 through the olfactory lobe can damage the brain 

10 and damage neuropsychological processes.

11 Some of the barriers the workers will 

12 have to getting a proper assessment of their 

13 condition are that the doctors, the 

14 psychologists, the medical doctors and so forth 

15 may not be in tune with the latest advances in 

16 toxicology and they may not be able to connect 

17 the dots between toxicology, neuropsychology and 

18 neurology.

19 Another set of barriers is that the 

20 as you probably all know that toxic chemical 

21 injuries, especially neurotoxic chemical 

22 injuries are hidden or they -- it's not as 
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1 obvious as having an industrial accident or 

2 getting struck by a car. 

3 The effects can be cumulative. The 

4 brain does not easily repair itself so the 

5 damage that low-level exposures cause can 

6 accumulate over time.

7 So a person may be relatively well 

8 for a number of years until they succumb to the 

9 injury and then it's more difficult for many 

10 doctors to make that connection.

11 The workers that I've seen have had a 

12 very difficult time getting compensation, 

13 extremely difficult. So some of the barriers 

14 I've spoken about.

15 Other barriers are the 

16 neuropsychological testing may not be up to you 

17 might say current standards. And the 

18 neuropsychologist may miss some of the subtle 

19 effects of the neurotoxic substances.

20 The types of substances that can be 

21 neurotoxic include solvents and that's one of 

22 the most common neurotoxic substances that the 
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1 workers will encounter.

2 One of the subjects who I evaluated 

3 from Los Alamos had heavy exposure to solvents 

4 over a number of years. And it really wasn't 

5 surprising that he had developed severe 

6 neurotoxicity yet I don't understand why it took 

7 him so long to get compensated for his injury. 

8 That I don't know. 

9 Solvents are among the neurotoxic 

10 substances. Pesticides, metals, mercury, lead, 

11 many other metals as well as I'm not sure if the 

12 workers will have that much exposure to mold, 

13 but mold is another neurotoxic substance that we 

14 have to watch out for.

15 CHAIR MARKOWITZ: Dr. Singer if you 

16 could just wrap up.

17 DR. SINGER: That's it. Thank you 

18 very much. 

19 CHAIR MARKOWITZ: Next is Mr. Paul 

20 Griego.

21 MR. GRIEGO: Thank you for having me. 

22 It's good to actually see real people and real 
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1 faces. This is kind of amazing.

2 I'm Paul Griego and I'm a former 

3 radiation worker. And I was in addition to 

4 working in a health physics laboratory I was 

5 involved in the 1977-1980 Enewetak Atoll Atomic 

6 Cleanup in the Marshall Islands.

7 And I was in the radiological element 

8 as a soil sampling crew. I was working 

9 basically at the most radioactive place on 

10 earth.

11 And one island for example, Runit, 

12 where we built a huge containment dome with 

13 110,000 cubic yards of radioactive waste was the 

14 site of -- it's only 97 acres and it was the 

15 site of 17 atmospheric weapons tests.

16 One of those tests failed to go 

17 critical and it blew up, spreading unspent 

18 weapons grade plutonium throughout the island. 

19 And we were there to gather that up.

20 It was a humanitarian mission with 

21 the hopes and belief that we were going to be 

22 able to return the islands to the natives. It 
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1 was their ancestral homeland.

2 Well, I've been denied health 

3 screening program under the workers compensation 

4 program and the Pacific Proving Grounds have 

5 years from 1947 to 1962. Well the cleanup 

6 operation was in '77 to 1980. And it was 

7 clearly the department -- well the radiological 

8 element was clearly the Department of Energy. 

9 I have all the documentation that the 

10 company, the contractor I worked for was 

11 contracted with the Department of Energy. It 

12 was a Department of Energy funding, Department 

13 of Energy oversight, Department of Energy, the 

14 nuclear waste itself is Department of Energy.

15 Yet I've been turned down because the 

16 Pacific Proving Grounds special exposure cohort 

17 stops in 1962.

18 So I filed a petition for an 

19 amendment to the special exposure cohort to 

20 include the 1977-1980 atomic cleanup of Enewetak 

21 Atoll with NIOSH. 

22 And NIOSH it was my understanding is 
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1 where I needed to file the petition. 

2 Subsequently they've sent it to the Department 

3 of Labor. Their letter and they assigned it a 

4 set number and off it went.

5 Well, now it's in oblivion. I don't 

6 know where it's at and who to speak to, where to 

7 go. I need help. I need help navigating the 

8 procedure and being able to get the amendment to 

9 that special exposure cohort.

10 And what I have is not anything gray, 

11 it's black and white. I worked for the 

12 Department of Energy contractor as a 

13 radiological element. I was there 24/7. I went 

14 to the contaminated islands, the toxic islands 

15 to dig soil. I didn't have any radiation 

16 protective gear whatsoever. I didn't even have 

17 a pair of garden gloves. And we were collecting 

18 samples.

19 I got through the Freedom of 

20 Information Act where ERDA did a report, there's 

21 my name, and I did 235 soil samples one day. To 

22 give you an example what we were doing, working 
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1 10 hour days six days a week.

2 And mostly it was with military. It 

3 was about 3 percent civilians with hands on 

4 participation. 

5 And now I'm at a point where I don't 

6 know where to go, who to talk to, what the next 

7 step is, who I might be contacted by, why NIOSH 

8 turned it over to the Department of Labor. 

9 Where do I go?

10 CHAIR MARKOWITZ: You need to wrap 

11 up.

12 MR. GRIEGO: Okay. And so I realize 

13 that the atomic cleanup was a failure but we did 

14 our best. And I feel that success has many 

15 fathers and failure is an orphan. And I am the 

16 orphan.

17 And my coworkers those of us, we've 

18 reconnected, mostly military through a Facebook 

19 group. We're finally getting recognition from 

20 media. We were in the front page of the New 

21 York Times earlier this year, front page of the 

22 Seattle Times. A book just got published in 
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1 September. 

2 We're in the front cover of the 

3 American Legion magazine. At this very moment 

4 the Australian Broadcasting Corporation is doing 

5 an in-depth documentary about the atomic 

6 cleanup.

7 Yet my government doesn't recognize 

8 me, doesn't recognize our work, doesn't 

9 recognize our participation in the Cold War and 

10 our participation as radiation workers. 

11 And so that's why I'm here today, to 

12 talk about our plight, not being recognized, not 

13 being able to make a claim because I'm outside 

14 of a date yet we're talking about 1962 to 1978. 

15 Plutonium has a half-life of 24,000 years. And 

16 the dome -- anyway, the radioactive waste when I 

17 was there was not much different than it was a 

18 day after the nuclear weapons test because of 

19 the half-life of most of the radioisotopes that 

20 we're dealing with.

21 And we drank water from a 

22 desalinization plant and later we find that 
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1 cesium and strontium is inside the coconuts. 

2 And if the coconuts which are nature's finest 

3 desalinization plant tree can't filter that out 

4 then certainly a desalinization plant by humans 

5 can't filter cesium and strontium out.

6 And I'm suffering a lot of ill 

7 effects health-wise and in our group it's every 

8 year we lose anywhere from eight to nine members 

9 from cancers.

10 And again they're military. They 

11 have access to the Veterans Administration 

12 hospital. They've got access to medical care 

13 but I don't because I served as a civilian.

14 CHAIR MARKOWITZ: Thank you. I need 

15 to end your comments but thank you very much. 

16 There was a NIOSH person here. I think she's 

17 left, I'm not sure. But there was a NIOSH 

18 person here.

19 MEMBER GRIFFON: Yes, my guess is 

20 that NIOSH referred it back to DOL to determine 

21 -- because this is probably not a covered 

22 period. And it's a question of the coverage.
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1 CHAIR MARKOWITZ: Okay fine. So we 

2 need to move on but thank you.

3 MR. GRIEGO: All right. Well thank 

4 you.

5 CHAIR MARKOWITZ: Thank you. Dr. 

6 Sood.

7 DR. SOOD: Chairman Markowitz I thank 

8 you for this opportunity to make a public 

9 comment to the advisory board. 

10 I'm board certified in pulmonary 

11 medicine and occupational medicine and the only 

12 occupational pulmonologist at the University of 

13 New Mexico and in our great state.

14 I routinely take care of energy 

15 workers and I am quite familiar with the 

16 problems that exist in this program.

17 Before I came here I reviewed the 

18 procedure manual. I also reviewed the advisory 

19 board recommendations and I also reviewed the 

20 DOL response to the advisory board 

21 recommendations on the internet. Thank you for 

22 posting them there.
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1 I want to specifically comment on 

2 four issues. The first one is shortage of 

3 providers for energy workers and then I want to 

4 talk about asthma, COPD and chronic beryllium 

5 disease recommendations. 

6 To begin with I wanted to let you 

7 know that energy workers in New Mexico are 

8 primarily taken care of by primary care 

9 providers. There's just not enough specialists 

10 in this state to take care of them. 

11 Not only is there a severe shortage 

12 of providers but those taking care of energy 

13 workers tend to avoid any interaction with the 

14 division of energy employees occupational 

15 illness compensation program for multiple 

16 reasons.

17 I know of providers who have signs 

18 that will say that we are unable to take care of 

19 uranium and energy workers. And there are 

20 multiple reasons for it. I'm not going to go 

21 over them.

22 At the University of New Mexico we 
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1 have a specialized occupational lung disease 

2 clinic for energy workers. Our clinic is 

3 overbooked routinely above 200 percent of 

4 capacity and it still has a six month long wait 

5 time, a wait time that no physician would ever 

6 wish for his or her patients.

7 In an attempt to provide care for 

8 energy workers in their own communities we've 

9 started a novel project, which is a program to 

10 build and sustain teams of rural professionals. 

11 But obviously more needs to be done.

12 I want to talk a little bit about 

13 asthma diagnosis and causation. In my 

14 experience work-related asthma is 

15 undercompensated and underrecognized but a very 

16 common condition in this cohort.

17 I'd like to emphasize and I really 

18 appreciate the board's attempt to put together 

19 simple, practical and clearly written strategies 

20 in diagnosing asthma and establishing its work21 relatedness that an average clinical provider in 

22 New Mexico can understand and use.
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1 There are certain things that I do 

2 want to point out. For instance, using a 

3 methacholine challenge test in the diagnosis of 

4 asthma is not practical in New Mexico. There's 

5 only one laboratory that does this test and 

6 really has a three month wait time.

7 Bronchodilator reversibility of FEV1 

8 which is one of the lung tests that's mentioned 

9 in the procedure manual is neither a sensitive 

10 test nor a specific test for the diagnosis of 

11 asthma.

12 It's not uncommon for New Mexico 

13 workers given our culture to underestimate their 

14 symptoms, to ignore the connection with the 

15 workplace and to not see a physician for years 

16 after the onset of symptoms. I really mean 

17 years after the onset of symptoms.

18 And it's also not uncommon for our 

19 physicians to make diagnosis years after the 

20 presentation, to make the wrong diagnosis and to 

21 ignore the connection with the workplace simply 

22 because they don't ask the question about the 
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1 workplace.

2 For instance, evidence of 

3 contemporaneous diagnosis of occupational asthma 

4 during a covered party employment will simply 

5 miss many cases of work-related asthma.

6 Further, an unsophisticated energy 

7 worker cannot specifically identify one of 

8 potentially hundreds of causative exposures or 

9 triggering mechanisms in the workplace.

10 Indeed most physicians including 

11 university-based pulmonologists would fail that 

12 test.

13 The requirements for work-related 

14 change in FEV1 peak expiratory flow rate, 

15 bronchial hyper-responsiveness, positive 

16 response to specific inhalation challenge that 

17 the procedure manual mentions to establish 

18 occupational causation are neither simple nor 

19 practical in our clinical environment. 

20 I want to make some comments about 

21 COPD. There are multiple statements in the 

22 procedure manual about COPD diagnosis which are 
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1 inaccurate. I'll give you some examples.

2 A bronchoscopy is noted in the 

3 procedure manual. No one uses that to make a 

4 diagnosis of COPD. 

5 But an abnormal diffusing capacity is 

6 helpful which is not mentioned in the procedure 

7 manual.

8 A diagnosis of COPD can be made in 

9 the absence of spirometric obstruction. This is 

10 also not recognized by the procedure manual.

11 Importantly the chronic bronchitis 

12 phenotype of COPD which in my opinion is the 

13 number one phenotype of COPD that I see in dust 

14 exposed energy workers is based upon the 

15 presence of symptoms. It's all about symptoms. 

16 There are often no abnormalities on 

17 spirometry or imaging in these patients and that 

18 needs to be recognized in the procedure manual.

19 The procedure manual talks about a 

20 history of smoking and in my opinion it's 

21 irrelevant to the diagnosis of occupational 

22 COPD.
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1 I want to make some comments on COPD 

2 causation as well. I want to point out that 

3 COPD saturated irritant and dust exposure is a 

4 very common condition that we see in energy 

5 workers.

6 This exposure does not necessarily 

7 have to be silica or asbestos, but it often 

8 includes mixed and poorly characterized dust 

9 such as construction dust and fumes such as 

10 diesel exhaust.

11 A 20-year exposure duration is set at 

12 too high a threshold when studies already 

13 indicate that five years or less duration 

14 exposures may also be substantial contributory 

15 factors.

16 There's something that I really liked 

17 what the advisory board said. A general simple 

18 term vapors, gases, dust and fumes.

19 I think as a risk factor it's well 

20 recognized by the scientific literature and 

21 certainly something that was recommended by the 

22 advisory board and that DOL did not think that 
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1 was useful. I think DOL should revise their 

2 stand on vapors, gases, dust and fume exposure. 

3 I want to end by talking about CBD 

4 presumption or chronic beryllium disease 

5 presumption in beryllium exposed patients with 

6 sarcoidosis.

7 I want to tell you about my own 

8 experience with the beryllium lymphocyte 

9 proliferation test. Most insurance companies do 

10 not cover it and it costs $1,000 and most 

11 patients cannot afford that.

12 When we do the beryllium lymphocyte 

13 proliferation test on the lavage during a 

14 bronchoscopy and send it to Oak Ridge, 

15 Tennessee, Denver, or Cleveland the cells die. 

16 It's really a useless test in the state of New 

17 Mexico simply because the lavage fluid cells die 

18 and so you really can't use it.

19 Given the limited availability of the 

20 beryllium lymphocyte proliferation 

21 transformation test in the blood and bronchial 

22 lavage fluid in New Mexico and the significant 
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1 rates of false negative tests which have been 

2 well published in the literature in my opinion 

3 covered beryllium exposed employees who are 

4 diagnosed to have sarcoidosis should be presumed 

5 to meet the more likely than not criteria for 

6 CBD under part E.

7 Even if the results of the beryllium 

8 test are normal or in my case often the test is 

9 not performed because people can't afford to pay 

10 for it.

11 This is recommended by the advisory 

12 board and I wholeheartedly agree with the same.

13 I actually want to conclude by 

14 recognizing the efforts of the advisory board in 

15 this regard. This board represents outstanding 

16 multidisciplinary scientific expertise and I 

17 really have to tell you that you provided 

18 simple, practical, easy to read recommendations 

19 on asthma, COPD and sarcoidosis last CBD, a feat 

20 that I have to tell you unfortunately does not 

21 always happen with advisory boards.

22 I thank the board members for their 
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1 recommendations for these diseases and urge DOL 

2 to accept the same.

3 Just one final word to the division. 

4 I think you do a wonderful job. But I think 

5 making simpler rules will keep our patients in 

6 New Mexico healthier and I think it'll wind up 

7 saving a lot of money for the program by keeping 

8 it simple. Thank you so much.

9 CHAIR MARKOWITZ: Thank you. Next is 

10 Ms. Maxine Pennington.

11 MS. PENNINGTON: Thank you to the 

12 board for this opportunity to see you in person. 

13 I do want to say that I participated online and 

14 my heart was warmed the first charter meeting at 

15 the end of the day. I go there's a board that 

16 has done a quick study and has been involved a 

17 long time. Because it's always been apparent 

18 that you understand the complexities, the 

19 intricacies and the tough job you have.

20 But seeing you in person today I 

21 still have that opinion that you're a great 

22 diverse board and I hope that you're crazy 
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1 enough to be nominated and accept a re-up on 

2 your board position if that's offered to you. 

3 So please.

4 Today I'd like to address the board 

5 on basically two topics. I was a chemist at the 

6 Kansas City Plant, a non-nuclear production 

7 facility from 1981 to 2013. I was a chemist, a 

8 chemical manager, the lab manager, program 

9 manager, various jobs over the years. 

10 But because of that I lived through 

11 the years of kind of the change in emphasis or 

12 really a big starting of emphasis on environment 

13 health and safety beginning around 1990.

14 But things didn't change immediately 

15 as has been brought up today.

16 One specific topic that I want to 

17 bring up, and I did send in this as a written 

18 comment so you probably have this in your board 

19 packet and that is the presumptions that are 

20 used from the new procedure manual exhibit 15-4 

21 on neurosensory hearing loss.

22 There are three specific -- a 
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1 diagnosis of sensory neuro hearing loss in both 

2 ears. Ten consecutive years of employment in 

3 one job category before 1990 and exposure to any 

4 of the seven specific organic solvents linked to 

5 sensory neuro hearing loss.

6 And specifically trichloroethylene 

7 was used gallons and gallons in degreasing and 

8 other cleaning operations throughout the plant 

9 at Kansas City Plant and at other sites through 

10 1990 that's true.

11 But I don't understand in these 

12 presumptions, specifically the completed before 

13 1990. 

14 And I provided as an attachment to my 

15 written comments a copy of a three-party 

16 agreement for the elimination of chlorinated and 

17 fluorinated hydrocarbons, CHCs and CFCs at the 

18 Kansas City Plant signed by the president of the 

19 Kansas City Plant, the contractor at that time, 

20 the president of Sandia National Labs because 

21 the design agency directs every change that 

22 happens at the plant. So that was signed by 
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1 Sandia president. 

2 And then a high official in the 

3 Department of Energy. So those were the three 

4 parties that signed an agreement on July 10, 

5 1990 to make a plan, a three-year plan that by 

6 July 1993 that CFCs and CHCs, the solvents would 

7 be eliminated to the greatest extent possible.

8 So again I ask. And during that time 

9 then there was major funding. So all of the 

10 scientists, engineers, lots of R&D projects 

11 happened at the plant using those solvents 

12 because the design agency accepts no changes of 

13 material going into a nuclear weapon unless 

14 there are lots of scientific studies, 

15 comparisons.

16 So 1990 to 1993 was a very, very 

17 active set of years for exposures to CHCs to the 

18 solvents.

19 And I'm a chemist. You would think 

20 maybe I would know but I thought the reason, all 

21 of us thought the reason was environmental. We 

22 were saving the ozone. We did not know about 
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1 neurosensory hearing loss associated. 

2 Worker safety was not emphasized. It 

3 was the environment and how do we eliminate 

4 waste.

5 In fact the whole program that was 

6 funded during that time 1990 to '95 was called 

7 pollution prevention program. And 

8 environmentally conscious manufacturing. It 

9 wasn't about worker safety, it was about the 

10 environment.

11 So I believe that 1990 is an 

12 inaccurate year to stop for evaluating exposure 

13 to chlorinated solvents. 

14 And in fact I did a little more 

15 homework recently and I went to the Kansas City 

16 Plant. They're still using trichlor, still have 

17 material standards, still have vapor degreasers. 

18 But there is much more worker protection now, 

19 personal protection requirement. 

20 Then the second part of that says 10 

21 consecutive years of employment in one job 

22 category where job is interpreted by examiners 
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1 as one job title.

2 The corporation changes job titles 

3 all the time. If that was meant to be that it 

4 would be evaluated based on 10 consecutive years 

5 of working with chlorinated solvents then I 

6 believe the policy should be changed to that 

7 rather than one job title.

8 And again this is an example and I do 

9 know from personal experience that it's a set of 

10 presumptions that should be positive but it's 

11 used in a negative to deny or make a recommended 

12 decision of denial and with no referral to 

13 industrial hygiene.

14 CHAIR MARKOWITZ: I'm sorry, it's 

15 time to wrap up.

16 MS. PENNINGTON: Okay. The second is 

17 asbestos and beryllium, very common in the 

18 literature to have lots of occupational medical 

19 studies.

20 There are many toxic substances that 

21 were specific to nuclear weapon production. 

22 Things like polychlorinated biphenyls and that 
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1 went through way past 1979 when the transformers 

2 were taken out. It went into the nineties, lots 

3 of polychlorinated biphenyl.

4 Lots of other mixtures that 

5 individually there are recognized human 

6 carcinogens by NIOSH and others. But in the 

7 review of the cases of our plastics workers 

8 because there hasn't been a specific to a 

9 chemical compound or element, to a specific 

10 target cancer those claims are being denied.

11 So my question is I understand it's a 

12 very difficult task, but in the absence of 

13 common epidemiology studies or occupational 

14 medical studies how can these folks who 

15 obviously a high percentage have developed 

16 cancers after working in plastics production at 

17 our plant be considered.

18 CHAIR MARKOWITZ: Thank you very 

19 much. The next speaker is Jan Martinette.

20 MS. MARTINETTE: Thank you, thank 

21 you. I'm so impressed with all of you and I've 

22 been in a lot of committees like this over the 
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1 years in politics and everything else. And I 

2 know it's a difficult thing because you're 

3 always making enemies some way shape or form, 

4 right?

5 Anyway, I hope you all are going to 

6 make some good friends here because we've got 

7 problems we need you to help us with. And I've 

8 been taking notes all day and they're not very 

9 organized so I won't be very organized, I'm 

10 sorry.

11 My husband worked at Kansas City 

12 Honeywell Plant for 44 years. And he died 10 

13 and a half years ago and I have not gotten one 

14 penny. And I have filed and filed and filed and 

15 filed and gotten denials and denials and 

16 denials.

17 I don't understand it. But here are 

18 some of the things that have happened that you 

19 might be surprised about.

20 Actually what he did there, the two 

21 main things first of all was plastic chemicals. 

22 His department made molded plastic foam. You 
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1 know how your dishes come in plastic foam 

2 squares. Well that's what his department did to 

3 ship the bomb parts that were being made in the 

4 Honeywell plant.

5 And so there's a professor at 

6 Missouri University that did publish and do 

7 research that says do not heat plastic baby 

8 bottles. Well here they are making plastic foam 

9 squares, having to put I don't know exactly 

10 because I wasn't there and I'm not supposed to 

11 know but a hot thing down in that plastic that's 

12 the shape of the bomb part to melt it so that 

13 those parts would fit in there and not rattle 

14 around in the shipping to the other plant and 

15 probably even in the bombs, I don't know. 

16 But anyway, his whole department 

17 would have to stand in that room and make sure 

18 that the temperatures were right and the 

19 chemicals were right, that they had their little 

20 box the right size and the right mold and put it 

21 down in there hot as it could be and that whole 

22 room -- this is what I heard from all of them --
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1 the room turned brown, the walls were brown, the 

2 ceiling was brown, the ventilation system was 

3 ruined, the floor was brown. They were a mess.

4 And they had no protection. They 

5 didn't give them anything to wear or breathe 

6 through or anything.

7 He did that for 44 years and these 

8 other guys with him. And several of them died 

9 right away. And then one of the little 

10 incidents that I didn't find out about until 

11 after he died is he'd had to travel to these 

12 other plants to make sure that when their parts 

13 got there they were safe, they were whole and 

14 not broken, and that they fit where they were 

15 supposed to fit.

16 Now some of these plants had the 

17 uranium in them and the dangerous chemicals 

18 there. Some didn't. 

19 But he traveled a lot and I have not 

20 gotten credit for that. They told me oh no, he 

21 didn't get enough exposure when he went to all 

22 these plants. Well, pardon me. But anyway.
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1 So he would go to all these plants 

2 and make sure everything was done right and then 

3 come back and start all over again.

4 Well, there was one right down here, 

5 Sandia. I didn't know till after he left and I 

6 happened to find his travel vouchers. In 1970 

7 he had to take a trip in a private vehicle it 

8 was mentioned and he and another one of his 

9 coworkers that worked for him in that department 

10 took my station wagon to Sandia full of 

11 chemicals because the mold down here at Sandia 

12 was bigger than the one in Honeywell. They 

13 couldn't use the one in Honeywell. Had to take 

14 it down there because they couldn't depend on 

15 the airlines getting it there before the half16 life was gone or whatever.

17 Now I never knew that till after he 

18 died. I even carted my kids around in that 

19 station wagon for all these years also. And I 

20 did get cancer in '81. I don't know that it was 

21 part of that and I've never looked into it. But 

22 I was so shocked I couldn't believe it. 
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1 But anyway I'll go on to the next 

2 thing that I really feel was really detrimental 

3 to his health was that he got a contract from 

4 DOE. He was the supervisor of this department. 

5 Got a contract from DOE saying that the PCBs in 

6 all of their lines in the plant that were 

7 supposed to lubricate the parts or whatever they 

8 do with them, I'm not supposed to know but maybe 

9 if I tell everybody you'll put me in the 

10 penitentiary and I don't need my claim, right.

11 Anyway, so they told him that the 

12 PCBs were so carcinogous and had been there of 

13 course forever coming through those lines that 

14 they needed to be diluted 50 percent.

15 Now it was his job and his people in 

16 his department that were to get all of the PCBs 

17 out of that line, drain the lines, and then put 

18 the new stuff in that was 50 percent diluted.

19 So they got that done with no big 

20 problem. Okay. Fine. A year later guess what? 

21 A new order from DOE saying well, that wasn't 

22 enough. It's still too carcinogous.
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1 Now I don't know how much of the 

2 whole plant was getting exposed to this but his 

3 department especially because they had to drain 

4 the lines again.

5 Well, they were having trouble with 

6 it and so one Saturday he and one of his best 

7 employees in the department and a plumber came 

8 in on Saturday to drain the lines because they 

9 were getting clogged. 

10 The stuff in any kind of a dip was 

11 thickening and they couldn't get the stuff out. 

12 So of course they had a big barrel down here, 

13 the lines were the whole length of the building 

14 or whatever it was and they started putting 

15 pressure on the line. 

16 Well you know what happened. When it 

17 broke through all three of them got completely 

18 drenched. I have not gotten a cent. 

19 And the poor dear person that had 

20 worked in Gary's department, he's still alive 

21 but he's a vegetable. But my husband's dead 10 

22 years ago. 
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1 Okay, now why am I not getting the 

2 credit that I need. I decided about five years 

3 in I can't stand to live the rest of my life 

4 under this pressure. And I re-signed up. And 

5 here I am, pressure. My doctors are saying I've 

6 got terrible depression. Well, too bad. I can 

7 cry if I want to. I'm sorry?

8 CHAIR MARKOWITZ: I'm sorry to 

9 interrupt you but we really need you to wrap up 

10 your comments.

11 MS. MARTINETTE: Well, okay. But I 

12 don't know why I cannot get the claim. I have 

13 the same toxicologist supposedly. Every denial. 

14 Every denial. I keep filing.

15 And the person who signs the denial 

16 will not tell me who this toxicologist is.

17 CHAIR MARKOWITZ: There's some people 

18 in this room here. I don't know how much 

19 contact you've had but I suggest you start with 

20 them.

21 MS. MARTINETTE: I have had contact 

22 with everybody under the sun and I don't know 
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1 why. And I've done research like crazy. The 

2 PCBs are cumulative. They will cause any kind 

3 of cancer. They're trying to make me find 

4 research that says one chemical causes one 

5 cancer and that's not true. It's not the way 

6 cancer works.

7 And then, one more thing. I asked 

8 for a legal hearing which we're allowed to do. 

9 We got everybody in there and two weeks ahead 

10 the gal in charge of the hearing called me to

11 tell me what was going to happen.

12 And I said now you've read all my 

13 stuff, yes. No, but I'll get it read in two 

14 weeks. I said ma'am, I wrote it. I can't read 

15 it in two weeks. 

16 Anyway, she shows up, makes a comment 

17 that she thinks that this molded plastic foam 

18 has bread mold on it. Thank you for listening.

19 CHAIR MARKOWITZ: Thank you. Next 

20 speaker is Ms. Cathy Turpin.

21 MS. TURPIN: Welcome everybody to New 

22 Mexico. There's people that have come from far 
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1 and wide. I'm a native New Mexican so it's my 

2 right to welcome you to New Mexico. 

3 And also to thank the board for all 

4 their diligent effort and all the work. So I've 

5 looked online at the SEMs and there's been a lot 

6 of work done and there's a lot of work to do.

7 And so thanks to everyone who's come. 

8 Sorry I get sidetracked. Anyway, so that's a 

9 short and sweet.

10 And so some of the things that I had 

11 put have already been addressed like list of 

12 afflictions, diseases, conditions, whatever you 

13 call them that people can refer to. And it 

14 sounds like the experts have referred to those.

15 So, short but sweet but there is, 

16 boy, the task is insurmountable. So thank you.

17 CHAIR MARKOWITZ: Thank you very 

18 much. Next is Ms. Terrie Barrie.

19 MS. BARRIE: Thank you, Dr. Markowitz 

20 and members of the board. My name is Terrie 

21 Barrie and I'm a founding member of the Alliance 

22 of Nuclear Worker Advocacy Groups.
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1 I want to thank all of you for your 

2 intense work that you've done over the past 18 

3 months or so. It's impressive. I am in awe of 

4 all of you.

5 The Department of Labor and the 

6 EEOICPA stakeholders could not have asked for a 

7 better board and I am sure that Secretary Acosta 

8 values the expert advice that you give to him 

9 and will reappoint all of you in the near 

10 future.

11 I'm worried that DEEOIC may be 

12 inadvertently duplicating some of the board's 

13 responsibilities that are explained in the 

14 statute and they're in your charter.

15 For instance, and you've mentioned 

16 this during the discussion today, the DEEOIC 

17 medical director had conducted audits of the 

18 CMCs. This is laudable. I have no complaint 

19 about that.

20 However, the statute and the charter 

21 requires that the board conduct -- to advise the 

22 Secretary on the quality, objectivity and 
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1 consistency of the CMC reports.

2 Additionally, the revision to the 

3 procedure manual includes a section that the 

4 DEEOIC toxicologist and I quote will determine 

5 if an individual claim evidence should be 

6 applied broadly as programmatic guidance and 

7 decide if it warrants the establishment of a new 

8 health effect or a modification to the causative 

9 threshold applied to the program guidance, end 

10 of quote.

11 This too I believe, and I might be 

12 wrong, but this too I believe falls under your 

13 responsibility especially since DEEOIC has 

14 requested the board to advise on presumptive 

15 diseases. 

16 It's been mentioned also that you do 

17 put in a lot of time and energy into this. And 

18 you do need support staff. Michelle Jacquez19 Ortiz from Senator Udall's office mentioned that 

20 you'd be provided with a technical contractor to 

21 assist you similar to the one the NIOSH board 

22 has.
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1 And I concur. You do need this. 

2 Someone to go over the SEM step by step. 

3 Someone to look at the IH reports and report to 

4 you.

5 Department of Labor obviously can do 

6 the same thing. They can do their review. The 

7 technical contractor can do their review and 

8 report to the board and then you discuss and 

9 decide and advise.

10 NIOSH's board does something similar. 

11 The dose reconstructions, they take 10 I think 

12 at a time, 10 sets and go over the dose 

13 reconstruction. They review it and report to 

14 the board and discuss.

15 Something similar I think like that 

16 can happen.

17 The problem is that the resources, 

18 the money is always an issue. But I think that 

19 if the Department of Labor puts technical 

20 contractor in as a budget line in next year's 

21 fiscal budget request Congress will consider it.

22 And an alternative in the time being 
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1 till that is done I'm sure that the Secretary 

2 could expand the role of the ombudsman's office 

3 to assist the board. They also have very 

4 talented people, detail oriented and I can't 

5 speak for the ombudsman but he's highly 

6 qualified and knows the program and knows what 

7 is needed.

8 So thank you for your time and I hope 

9 to see you next spring.

10 CHAIR MARKOWITZ: Thank you. Next 

11 speaker is Mr. Eric Bustos.

12 MR. BUSTOS: Thank you board members 

13 for being here today and welcome to New Mexico. 

14 I worked for Los Alamos Laboratory for probably 

15 seven years. My father was a plumber there and 

16 he died a year and three months ago from liver 

17 cancer. That was his determined cause of death.

18 Two weeks ago we were supposed to 

19 have a meeting with NIOSH and it was scheduled. 

20 We never heard from them. Still to this day we 

21 haven't heard from them.

22 Our advocate was there. We were at 
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1 her house. We were waiting for the call. Never 

2 showed up. Never got there. She called three 

3 times from there. We stayed there two and a 

4 half hours. Nothing ever got happened about 

5 that.

6 Probably three months ago I got 

7 diagnosed with liver cancer myself. And I 

8 worked for parks and recreation up in Los Alamos 

9 for 11 years. Moved a lot of dirt, a lot of 

10 field work that we were there.

11 They haven't determined how I got it 

12 but I have it. And I just want to know why 

13 nobody has contacted us in this situation. And 

14 that's about it.

15 CHAIR MARKOWITZ: Thank you. Our 

16 next speaker is Ms. Stephanie Carroll.

17 MS. CARROLL: Hello. Thank you for 

18 all your good work. I am just so pleased that 

19 the board was mandated. 

20 And I agree with Terrie about you 

21 needing some technical assistance. And it was 

22 mandated in the act. It reads the Secretary may 
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1 employ outside contractors to support the work 

2 of the board. And I hope that that gets 

3 enforced and that you do get the help that you 

4 need.

5 I just spent the last two days with 

6 the beryllium health safety committee. There 

7 was a beryllium symposium, it happens every four 

8 years so it was very interesting and we did talk 

9 about the borderline BELPTs.

10 Now one thing to keep in mind is that 

11 the law actually doesn't call this test a BELPT. 

12 The BELPT was -- it is a test that was patented 

13 by the University of Pennsylvania. Dr. Rosfam 

14 was the lead in that. So that test is not a 

15 lymphocyte proliferation test that is discussed 

16 in the act.

17 So one thing that could happen is 

18 that a physician could look at the test results 

19 of a lymphocyte proliferation test, not the 

20 BELPT, and determine that it's abnormal.

21 The stimulating index doesn't have to 

22 be -- it doesn't have to be the BELPT that is 
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1 abnormal. So if a physician finds a lymphocyte 

2 proliferation test abnormal that should qualify 

3 for beryllium sensitization.

4 One of the things that has also 

5 happened is Dr. Sara Clarke spent six years 

6 studying Rocky Flats workers and performing 

7 lymphocyte proliferation testing. 

8 Once she passed away all of her 

9 information was pretty much buried. I had to 

10 FOIA everything. I couldn't find much on Sara 

11 Clarke. But I did find letters that were sent 

12 to the workers telling them that their 

13 lymphocytes were responding to beryllium which 

14 proved that they were exposed to beryllium in 

15 their jobs.

16 These letters were hand delivered or 

17 sent to the workers because when I ordered the 

18 Department of Energy records I never get this 

19 letter. It's like everything was destroyed at 

20 the site.

21 So some of my workers do have the 

22 letter.
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1 There is a policy at EEOICPA 

2 Department of Labor that they will not accept 

3 any of her reports saying that there is a 

4 lymphocytic process showing exposure to and 

5 reaction to beryllium. 

6 They won't accept it. I don't know 

7 where the policy is written. But if you send in 

8 one of these reports it won't be accepted as 

9 consistent with beryllium sensitization.

10 The new procedure manual I completely 

11 object to. If a new procedure manual is going 

12 to be put into place I think that everything in 

13 writing that has been produced for a policy 

14 should be kept online. That means every 

15 bulletin that has ever been written. Because we 

16 have 10, 12 years of policy for some workers 

17 that now is no longer in existence. 

18 So I would like to see everything 

19 that has gone into policy for this program to be 

20 put online, especially the telephone conference 

21 calls.

22 I have one here from 5/11/11. It 
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1 doesn't need any redaction because no telephone 

2 conference calls have personal information on 

3 them. 

4 But this one was a question 

5 concerning the existence of CBD under part E. A 

6 physician narrative. They were quoting the 

7 procedure manual at that time saying that a part 

8 B final decision under EEOICPA approving 

9 beryllium sensitivity or CBD is sufficient to 

10 establish the diagnosis and causation under part 

11 E.

12 However, if there is no part B 

13 decision a positive LPT result is required to 

14 establish a diagnosis of beryllium sensitivity 

15 and a rationalized medical report including a 

16 diagnosis of CBD from a qualified physician is 

17 required to establish CBD under part E.

18 That is completely unfair. It's 

19 inconsistent with the intention of Congress to 

20 have the part E chronic beryllium disease claims 

21 have a different diagnostic criteria than 

22 everything else under part E for this program. 
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1 So to require a BELPT to have a 

2 physician supported diagnosis of CBD approved 

3 under this program under E is completely unfair. 

4 It's arbitrary. It's capricious. Especially if 

5 you compare it to the Norman case that was won 

6 by an attorney in New Mexico. 

7 So the question was from the national 

8 office in order to establish CBD under part E is 

9 a positive LPT always required. Does the 

10 individual have to establish beryllium 

11 sensitivity or can the individual present a 

12 qualified medical opinion of established CBD.

13 They came back and said you must have 

14 an LPT, a positive BELPT, and you also must have 

15 the diagnosis with the well rationalized letter 

16 from the physician. 

17 This is the other thing. Under part 

18 E a sarcoidosis claim should be able to be 

19 approved. Sarcoidosis should be under SEM. It 

20 is nowhere in SEM. 

21 If sarcoidosis isn't under SEM then a 

22 granulomatous lung disease should be. 
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1 Sarcoidosis is found to be caused sometimes by 

2 titanium and other metals. Those cause 

3 granulomatous lung disease. It's nowhere in 

4 SEM.

5 The other thing I found was old SEM 

6 reports actually have references to a library 

7 that DOL has in support of every one of their 

8 SEM reports. 

9 So if you do have a question about 

10 old SEMs that are discussing asthma or COPD you 

11 can request the references in the documentation 

12 that provided the information for SEM. Of 

13 course that was gone when it was made public, 

14 all of that library is not accessible to us. 

15 But I have a few of those. I'll make sure you 

16 get a few copies.

17 CHAIR MARKOWITZ: Ms. Carroll, start 

18 to wrap up.

19 MS. CARROLL: Okay. The other thing, 

20 one more thing. During the meeting yesterday 

21 Bill Stangie, Jackie Rogers, Dan Fields, Dr. 

22 John Price and Paul Womback, Kathy Creek from 
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1 Los Alamos, we were talking about getting 

2 statistics for each site's beryllium 

3 sensitization claims and chronic beryllium 

4 disease claims approved by year.

5 That can happen because under an SEC 

6 they go into the computer, they put an ICD-9 

7 code in and they can make reports of approvals 

8 for certain illnesses. It's easily done.

9 So we need to do that. They all went 

10 to Washington, D.C. requesting that they can get 

11 those stats because it will help with the former 

12 worker program. Bill Stangie really wants those 

13 statistics. I would love to see them. 

14 And it will also prove that this 

15 procedure manual and the changes in policy have 

16 had an effect on how many people are approved 

17 for lung disease and especially chronic 

18 beryllium disease and BES which I am completely 

19 interested in.

20 So thank you very much. I appreciate 

21 you all being here and allowing me to speak. 

22 And I would love you to help get those stats. 
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1 Bill Stangie and all would be very interested. 

2 Thank you.

3 CHAIR MARKOWITZ: Thank you. Is Ms. 

4 Priscilla Covis here? So next will be Mr. 

5 Rendell Carter.

6 MR. CARTER: Thank you, Mr. Chairman 

7 and committee. I appreciate the opportunity to 

8 speak.

9 I am a claimant. I have been 

10 diagnosed with light chain deposition disease 

11 and if you'll indulge me, I know this isn't a 

12 question and answer, how many of you have heard 

13 of light chain deposition disease? 

14 It's a very rare condition but it's 

15 tightly related to multiple myeloma. It's often 

16 a precursor.

17 It was discovered because my kidney 

18 function had decreased to 50 percent and my 

19 primary care physician insisted on following why 

20 I have a trend of decreasing kidney function 

21 over the past three years.

22 In fact if you project my kidney 
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1 function decline if I had not received treatment 

2 it would have declined to the criteria to meet 

3 multiple myeloma within one to two years or if 

4 you believe my nephrologist within six months.

5 However, I also qualify for 

6 smoldering multiple myeloma because I have a 

7 plasma cell population of 10 percent. And I 

8 have no myeloma defining events. The kidney 

9 damage is not sufficient to qualify as a myeloma 

10 event. Therefore I don't qualify as full or 

11 symptomatic multiple myeloma.

12 So having gone through this process 

13 it was very confusing at first and one of my 

14 biggest concerns about this process is it's very 

15 hard even for a research scientist as myself at 

16 Los Alamos, I've been there for 34 years, it's 

17 difficult to navigate as a lay person.

18 Initially I was diagnosed with 

19 multiple myeloma because my physician 

20 misunderstood the criteria. And so that's what 

21 I applied with. I applied with light chain 

22 deposition disease/multiple myeloma.
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1 Along the way the claims examiner 

2 without giving me sufficient time and didn't 

3 know what kind of evidence they needed, I 

4 submitted all my lab reports.

5 Without giving me time to respond or 

6 get my physician to respond he sent it to the 

7 contract medical consultant and asked him only 

8 two questions. Is this multiple myeloma and 

9 secondly is it a cancer.

10 And technically it is not either one 

11 of those. Even though they are caused by the 

12 same underlying condition and the only 

13 difference between smoldering multiple myeloma 

14 and light chain deposition and fully symptomatic 

15 multiple myeloma is the level of bone marrow

16 cells involved, their percentage, and a myeloma 

17 defining event.

18 So it's easily demonstrated that 

19 within two years I would likely have qualified, 

20 but I've been denied the claim.

21 My other concerns. It would stand to 

22 logic that if the same cause causes multiple 
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1 myeloma in these other immunoproliferative 

2 neoplasms that it would be equally likely that 

3 they would be caused by radiation as multiple 

4 myeloma is.

5 Yet that logic which stands to reason 

6 is not accepted as a reason for a claim. 

7 Secondly, because my disease is very 

8 rare there needed to be more dialogue between 

9 the claims examiner and perhaps the contract 

10 medical consultant.

11 I went to MD Anderson to get the best 

12 treatment I possibly could. I had two 

13 physicians even write a letter stating this 

14 relationship and yet it was never shown to the 

15 contract medical consultant in the first place. 

16 Secondly, he wasn't even asked what's 

17 the likelihood of this disease being caused by 

18 exposure. And by the way I'm also in the 

19 beryllium monitoring program for the same 

20 exposure reasons as well as I was exposed to 

21 solvents.

22 But there is not an occurrence in the 
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1 matrices that the Department of Labor uses 

2 between light chain deposition disease and those 

3 exposures. 

4 So secondly, there's a lack of 

5 interchange in order to fully develop the case.

6 Third, I have been told by the final 

7 adjudicator in the process of appealing which is 

8 pending that my research that I supplied with 

9 peer reviewed journal article reference and 

10 citations was not enough. That I needed my 

11 doctor basically to supply the same information 

12 in a fully rationalized meaning citations and 

13 peer reviewed work.

14 Unfortunately these doctors are 

15 extremely busy and they don't get paid to write 

16 these extended descriptions. And so I feel 

17 that's -- I think the burden should be on the 

18 Department of Labor to refute my physician's 

19 opinion, not the other way around.

20 I did find thanks to the ombudsman 

21 recommendation last night that in the procedure 

22 manual there is in the matrix 17-7 a reference 
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1 to cancers, multiple myeloma, and other 

2 immunoproliferative neoplasms.

3 Yet that connection was never made by 

4 the claims examiner or the CMC or anybody else.

5 So I think I have grounds for an 

6 appeal and I will try that.

7 So lastly, and I'm almost done, it 

8 has been very difficult to find information 

9 about how these decisions are made of what is a 

10 special cohort, why it was made a special cohort 

11 and furthermore what a physician would have to 

12 do to suggest that I qualify for one.

13 And also, what conditions have been 

14 considered for special cohorts but have not been 

15 found. So navigating this system has been very 

16 difficult for even a research scientist and a 

17 layman. 

18 And I have not gotten an authorized 

19 representative because I thought it should be 

20 navigable by an ordinary citizen. And it 

21 appears I'm going to have to get more resources.

22 CHAIR MARKOWITZ: Thank you. If you 
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1 have a moment after the meeting one or more of 

2 us may want to talk to you.

3 MR. CARTER: Certainly. And I have a 

4 written letter that states this as well as some 

5 of the supporting evidence that if there's a 

6 place to submit that. Thank you very much. 

7 CHAIR MARKOWITZ: Next up is Marla 

8 Ortiz Gabriel Dunn.

9 MS. ORTIZ: Good afternoon Chairman 

10 and members of the board. Thank you for this 

11 opportunity today.

12 I'm here to speak with you about my 

13 dad's claim. My dad worked for Los Alamos 

14 National Lab. His name was Dan Ortiz and he 

15 became ill after working with toxic substances 

16 during his employment.

17 After leaving the lab on a mandated 

18 medical retirement and despite having worked 

19 tirelessly to help establish this very program 

20 actually he became a victim yet again of the 

21 bureaucracy of the DOL claims process.

22 And I just want to briefly recap what 
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1 he and I and our family went through to get his 

2 claims processed.

3 Initially he filed his claim in 2002. 

4 I don't remember the exact date. I think it was 

5 late 2002. And I began helping my dad as his 

6 authorized representative in about 2004.

7 Luckily I was at a time in my life 

8 where I had time to be able to help him navigate 

9 a very difficult process.

10 What we experienced from time to time 

11 was my dad's file being misplaced. It got 

12 transferred to different district offices. We 

13 were never told about it so we'd follow up with 

14 one office and after many, many days sometimes 

15 they're saying oh, now it's in Seattle, and oh, 

16 now it's in Washington, D.C.

17 Other times it was reassigned to 

18 other claims representatives. It was always 

19 just starting from the beginning because they 

20 weren't familiar with the claim. We couldn't 

21 just keep it rolling smoothly.

22 So despite my dad having over 20 
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1 years of compelling medical records and 

2 supporting documentation, evidence that 

3 supported the claims of his medical records he 

4 was denied every single time. At least the 

5 initial claim was denied.

6 And not trying to be negative here 

7 but we often did think that DOL's default 

8 response was just claim denial.

9 And these are the words that kind of 

10 come to mind when dealing with the claims 

11 process. It was confusing. It was complicated. 

12 Frustrating, disheartening and discouraging.

13 And I really feel for people that 

14 don't have an advocate that can help them 

15 because I don't think my dad could have done 

16 this on his own. Or it would have been very, 

17 very difficult for him.

18 I was in college at the time. 

19 Fortunately I was in a kind of academic mindset 

20 so whipping out an appeal letter was pretty easy 

21 to do. Figuring out the compensation packet was 

22 pretty easy for me to do, but not everybody has 
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1 that type of person that can act on their 

2 behalf.

3 After a decades long road of 

4 suffering injustices and declining health my 

5 dad's DOL claim finally about five and a half 

6 years later he did receive full compensation for 

7 his claim. And my dad finally had a moment of 

8 peace after as I said many decades.

9 But it didn't end there. The claims 

10 dysfunction continued unfortunately. In 2013 my 

11 dad's illness really began accelerating and he 

12 was eventually approved for 24/7 home healthcare 

13 benefits. 

14 And I want to touch upon a few of 

15 what we experienced there. My parents' home has 

16 a lot of steps so he was approved or actually 

17 they put in claims to get ramps installed in my 

18 parents' home. And my mom had to pay out of 

19 pocket for portable ramps inside because the 

20 claim was initially denied.

21 There were some outside elevation 

22 differences and those were more of a 
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1 construction project. 

2 And my dad got to use the outdoor 

3 ramps one time, his final return home from the 

4 hospital. I don't even think it was a week 

5 before he passed away.

6 Additionally we were trying to get a 

7 shower remodel, a walk-in shower so that we 

8 could put my dad in the shower, or actually 

9 wheel him into the shower. And although that 

10 claim was approved for the work it was difficult 

11 to find a contractor. They got caught up in I 

12 guess the vendor system to work with DOL to get 

13 that to become a DOL vendor.

14 And my mom had to change the 

15 contractor that she chose because there was 

16 somebody else who had already been through the 

17 process and so they were able to navigate it a 

18 little bit better.

19 It was very late in the game however 

20 at that time. And although the contractors were 

21 there working on making the renovations it was 

22 two days after my dad passed away that that was 
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1 finished.

2 So he never even had the opportunity 

3 to use the shower.

4 This is why I have come before you 

5 today because submitting a legitimate DOL claim 

6 should not be this difficult. Injured workers 

7 should have a much more streamlined process and 

8 not have to endure yet additional stress and 

9 anxiety.

10 And I just want to get a little 

11 personal perspective of my dad. I think about 

12 how happy and excited he must have been to have 

13 been offered a job at Los Alamos back in the 

14 day. I was six months old. That was quite a 

15 while ago. 

16 And he must have thought what a 

17 promise of a good salary, the potential for 

18 professional growth, benefits, everything that a 

19 young family man could dream of.

20 And never did he think that his job 

21 would cost him his health and ultimately his 

22 life. And that is something that none of us 
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1 should ever have to experience in the pursuit of 

2 happiness.

3 I respectfully ask that you 

4 streamline the process to accept the 

5 recommendation of the board as they have a 

6 wealth of expertise in these types of issues.

7 And the claimants have endured enough 

8 and should not be subjected to a very difficult 

9 and arduous claims process. And I thank you all 

10 for listening. 

11 CHAIR MARKOWITZ: The next speaker is 

12 by phone actually, it's Ms. Donna Hand.

13 MS. HAND: Yes.

14 CHAIR MARKOWITZ: Welcome.

15 MS. HAND: Thank you very much. 

16 Thank you board for being there. We're trying 

17 to make it brief since I know it's been a long 

18 day.

19 I want to correct something that --

20 just about the recommendations of number 4 in 

21 the Department of Labor's response.

22 It says at least as likely as not 
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1 that exposure to a specific toxic substance. 

2 Specific is not in the statute at all nor is it 

3 in the regulation.

4 What it says is exposure to a toxic 

5 substance was a significant factor. Not just 

6 significant, but a significant factor. And they 

7 define significant factor as meaning any factor.

8 So you've got to go by the 

9 definitions that's already been established back 

10 in 2000, 2001, 2004 and in 2005. So these are 

11 definitions that's already established by the 

12 statute which is binding. 

13 So there is no specific toxic 

14 substance that's required and a significant 

15 factor meaning any factor.

16 Also the toxic substance is defined 

17 as any material. So ionizing radiation. So any 

18 material that has the potential. It doesn't 

19 have to definitively do it. To cause illness. 

20 It doesn't say what type of illness. To cause 

21 illness because of its radioactive nature, its 

22 chemical nature, or its biological nature.
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1 These are definitions that are very 

2 binding. So whenever you look at any SEM or 

3 toxic substance or relation to that you have to 

4 take into consideration this is what Congress --

5 this is what the statute said.

6 The Secretary also at her discretion 

7 to put into the regulation, they give their own 

8 interpretation at that time which makes it 

9 binding also because it's in the regulation.

10 So policy is not. Policy has to be 

11 discretionary. You cannot mandate.

12 You also have work-related. This 

13 exposure comes out of work, arise out of work. 

14 So it's not labor category. It's just like what 

15 more is there to say.

16 We have assemblers that assemble 

17 parts but that part of their assembly had to go 

18 into a furnace. So at that point they're 

19 exposed to asbestos. Asbestos isn't just in the 

20 ceiling and the tile and the pipes. They had 

21 the vermiculites that cleaned up mercury. They 

22 had the creosotes. It's a form of silica is a 
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1 form of asbestos.

2 So you can't just narrow it down to a 

3 specific time, labor category, or chemical. And 

4 that's not what was required by the statute.

5 Also doing a lot of the programs at 

6 the facility they added on square footage. 

7 While they were adding on square footage the 

8 products was still going on. They didn't stop 

9 production. 

10 So when you've got this going on as 

11 well, all these dust, fumes and vapors going on 

12 while they were still working on the product. 

13 So they were exposed that way.

14 And we're having a lot of diagnosis 

15 from pulmonary doctors saying they have 

16 COPD/asthma. They have COPD/bronchitis. They 

17 have COPD/emphysema. And Department of Labor is 

18 not coming back to us and saying we treat those 

19 as two separate illnesses. We have to have two 

20 separate diagnoses. It's a pulmonary disease. 

21 And this is what the doctors -- it's pulmonary 

22 specialists are diagnosing it as.
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1 Just briefly is that the exposures 

2 for all the other illnesses that you're going to 

3 accept so you have to go by the criteria of the 

4 statute.

5 It says in any other case a 

6 contractor employee shall which was mandated be 

7 determined for purposes should have contracted a 

8 covered illness through exposure at a DOE 

9 facility if it's at least as likely as not that 

10 exposure to a toxic substance was a significant 

11 factor in aggravating, contributing to or 

12 causing the illness.

13 And again if you're using work asthma 

14 you have to see a trigger. What about the 

15 childhood asthma that then was aggravated by the 

16 chemicals that they started working at? You're 

17 ignoring that part of the worker's claim.

18 And then the second part of this is 

19 it is at least as likely as not that the 

20 exposure to such toxic substance was related to 

21 employment. And so did it arise out of work.

22 And the regulations which the 
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1 Secretary used at their discretion defined 

2 exposure to mean did they come in contact with 

3 it. 

4 And at the very beginning of the 

5 program in 2005, '06, '07 and '08 was it 

6 plausible. Did they have the potential. It 

7 doesn't have to be 100 percent exposure, was it 

8 plausible. Did they come in contact with it. 

9 That was all that was required.

10 I'll have other issues such as the 

11 work day, the work day one single shift. If you 

12 do it for five years, well if they worked 60 

13 hours a week or more you may have one year as 

14 far as we're concerned really be two years’

15 worth of work. So that issue there needs to be 

16 addressed.

17 I thank you again for your time and I 

18 will send an email out and hopefully it will be 

19 put on for everybody to read about the other 

20 issues and concerns.

21 And again thank you, thank you, thank 

22 you to the whole board. We really appreciate 
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1 you.

2 CHAIR MARKOWITZ: Thank you, Ms. 

3 Hand. Ms. Vina Colley on the phone.

4 MS. COLLEY: Yes. It's been a long 

5 day and I couldn't hear all the conversation 

6 because there was such bad reception but my name 

7 is Vina Colley and I am with Nuclear 

8 Whistleblower Alliance, National Nuclear Workers 

9 for Justice and Craft for Residents and 

10 Environmental Safety.

11 And first off I want to say I 

12 appreciate having this opportunity to speak 

13 again. And as in the past I would like to 

14 invite you to Portsmouth, Ohio and Paducah, 

15 Kentucky. Paducah facility and see how these 

16 workers are being left out of the process. 

17 I would ask the board why has DOE 

18 excluded from their respective TBDS the 

19 processing of the Russian uranium at Paducah, 

20 Portsmouth and Allied, Honeywell and especially 

21 since the U.S. Senator Mitch McConnell, DOE and 

22 my representative in Ohio were all aware of this 
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1 transition that DOE and this uranium 1 Russian 

2 uranium that came to our site.

3 When were they going to tell the 

4 workers about their exposure?

5 I also heard people on this line 

6 talking about CPD oil. And in our facility the 

7 CPD oil that was leaking from upstairs, from I 

8 don't know where, but that CPD oil was 

9 radioactive oil.

10 And at our site they took CPD piping 

11 and put it up along the duct work around the top 

12 of the facility to catch this oil. And there 

13 was a congressional hearing telling Senator 

14 Glenn and after he contacted us are you sure 

15 that that is just regular oil and it's not 

16 radioactive oil.

17 So what has happened, these workers 

18 have been in these buildings and this oil has 

19 been leaking with radioactivity the whole eight 

20 hours that they were on plant site. So whoever 

21 goes around and picks out one certain chemical 

22 that we were exposed to. And then they'll send 
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1 me 20 other chemicals that I was exposed to. 

2 But still it's not causing me no problems.

3 And another problem with this program 

4 is the consultants are not getting our records. 

5 I had a consultant say that I worked at Paducah. 

6 I've never worked there. 

7 He also said that I smoked a pack of 

8 cigarettes every day for 20 years and I've never 

9 smoked. 

10 And he also said that he didn't have 

11 any records in his file that said I had 

12 pulmonary edema. So they dismissed my pulmonary 

13 edema.

14 So now I've had to get an attorney to 

15 help me with my claim. The statements of cause 

16 are never accurate. The DOL denies all bases on 

17 inaccurate and erroneous information written 

18 into the recommended decisions and the hearings.

19 And I also have to mention about the 

20 yellow tape. So all these sections they had a 

21 radiation leak they put yellow tape around it as 

22 if the radiation would stay inside that tape.
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1 And I want to go back and mention the 

2 tape from Russia. After the cutoff none of 

3 these workers and none of us were told about the 

4 downgrading of Russian uranium. So I'd like to 

5 know how the board is going to address this. 

6 Are we going to open up every claim that's tied 

7 to Paducah, Portsmouth and Honeywell and 

8 Indianapolis. We need answers.

9 And we need you to come to our 

10 community so we can ask the answers and you can 

11 talk to people. People are having problems 

12 again I talked to a lady yesterday. Her father13 in-law died of lung cancer and they can't even 

14 get survivor's benefits. The program is so 

15 screwed up.

16 I appreciate all the work that you 

17 guys are putting into it but it seems like to me 

18 that someone's making a lot of money because the 

19 workers are dying and they're not getting their 

20 compensation.

21 This program now is 17 years down the 

22 road. I've been working at this since 1987 and 
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1 I filed a complaint about our facility in 1983. 

2 So why is it taking so long to get 

3 these workers compensated. It's ridiculous. 

4 The government admitted that they made us sick, 

5 and they admitted that Portsmouth and Paducah 

6 wasn't told that we had plutonium. And we've 

7 had plutonium since 1953. 

8 When they finally come out with it 

9 after we broke the story, four whistleblowers 

10 from Paducah, myself and Mary Burke Davis, they 

11 admitted that they had plutonium at the site and 

12 they admitted that they made us sick. And they 

13 had a press conference saying they were going to 

14 help us.

15 Why aren't they helping us? You 

16 still there? Hello?

17 CHAIR MARKOWITZ: I'm sorry, I need 

18 you to wrap up your comments.

19 MS. COLLEY: Well I want to ask again 

20 that you come visit the sites at Paducah and 

21 Portsmouth and let's find out what's going on. 

22 Why aren't these workers getting compensated. 
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1 How can you tell us that you exposed us to 

2 plutonium and then turn around and ignore your 

3 own facts and findings, the Department of Labor 

4 and Department of Energy find their own facts 

5 and findings that we have plutonium. 

6 And they also admit that we have 

7 recycled or downgraded this uranium, highly 

8 enriched uranium from Russia. So when are we 

9 going to tell the workers. What have you told 

10 the workers because I haven't heard anything 

11 about it. Thank you very much. 

12 CHAIR MARKOWITZ: So we're running 

13 late and we have one last speaker so if it's all 

14 right with the board I'm going to ask is Mr. 

15 Gary Van der Boegh on the phone?

16 MR. VAN DER BOEGH: Yes, he is.

17 CHAIR MARKOWITZ: Okay. So we have 

18 five minutes if you can restrict your comments. 

19 We'd appreciate it.

20 MR. VAN DER BOEGH: About three more 

21 minutes I get it's a DOE meeting. Always a 

22 pleasure. You all are doing a fabulous job. 
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1 You know that I have to tell you all straight up 

2 the truth. And I do appreciate all the people 

3 who are making comments today. You all are as 

4 I've said in emails to you all all throughout 

5 the day that I could. I'm kind of homebound 

6 with bronchitis myself today. I'll try to get 

7 through this. But I've got enough documentation 

8 to you to show you my concerns.

9 All of you have to realize I'm the 

10 only sick nuclear worker that's an authorized 

11 representative that so far has gone out himself 

12 and classified himself as AR-C-0001 for a 

13 reason.

14 We're not intimidated by anybody. 

15 And when I say we are not, we are the workers of 

16 Paducah Gaseous Diffusion Plant that for some 

17 reason as Ms. Colley has mentioned are being 

18 denied their due process, number one, and their 

19 statutory regulatory claims which are obvious to 

20 everybody even when we hold hearings it's 

21 laughable.

22 So if you all want to sit in on a 
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1 hearing where you've been asking the very 

2 questions that we've been documenting at the 

3 hearing the claims examiners do the best they 

4 can with what they've been told to do. That's 

5 it.

6 We know where the problem is. I'm a 

7 Lockheed Martin former employee. I don't work 

8 for Lockheed but how in the world would anybody 

9 ever want to have their claim reviewed by a 

10 Lockheed Martin subcontractor who was acquired 

11 by Lockheed for the purposes of this very reason 

12 to deny your claims based on their own medical 

13 opinions and not even look at the records.

14 Go to the Charles Stone v. DOE and 12 

15 other CBD claims and you'll see what's going on. 

16 This is not funny anymore. We've got dying 

17 workers. I'm getting sick and tired of having 

18 to put in front of a staff hearing officer. Mr. 

19 Gerard O'Hara you should be ashamed.

20 When RSV Trucking is hauling uranium 

21 all over the United States out of Paducah and 

22 all over across the river we never knew it. I 
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1 didn't know it. It started in '92.

2 And watch Tucker Carlson on November 

3 2, 2017 and the cat is out of bag.

4 Dr. Markowitz I want to thank you. 

5 You've always been there whenever I've had a 

6 chance to contact you and talk with you. 

7 We're not getting paid for beryllium. 

8 It doesn't matter if you have all the criteria. 

9 Look at the claims. The CMCs are hired to 

10 refute their own -- and they're not even seeing 

11 the medical information. Go to Charles Stone. 

12 That was in the record. We got attorneys 

13 involved.

14 It's shocking and it's shameful. Now 

15 if you go back and look I've already uploaded 

16 all of this a year ago on December 21 to the 

17 President of the United States. 

18 I'm not afraid of going to Congress, 

19 people. Just don't be afraid of communicating 

20 the truth. If you're really involved in 

21 exposing a problem then understand the statutes 

22 are the requirement. They're not some rule even 
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1 in the Bingham case. You're not supposed to be 

2 waiving the statute because somebody decided 

3 that Gary Van der Boegh won three CBD claims and 

4 now President Obama had to stop the claims.

5 And we've got a senator in Kentucky 

6 that quote controls the claims. Dr. Markowitz 

7 and the board I want you there for a long time 

8 because we're now Nuclear Whistleblowers 

9 Alliance and we're at Rocky Flats working with 

10 Allied Chemical in Paducah, Kentucky.

11 Thank you so much. You're going to 

12 hear a whole lot more.

13 CHAIR MARKOWITZ: I just have a quick 

14 question. So we'll go tomorrow 8 to 11 so we'll 

15 start at 8. But does anybody have a plane 

16 flight between say 10 and 1 tomorrow? That's 

17 what I'm trying to figure out is when you have 

18 to leave. 10:30? 10:30.

19 Okay. Also in case you need to get 

20 rides with each other I suggest you be fully 

21 packed with your bags ready. We can work out 

22 tomorrow or even work informally tonight to 
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1 figure out how to get to wherever you need to 

2 go.

3 So what time do both of you need? 

4 Okay. The meeting is adjourned. We'll figure 

5 this out.

6 (Whereupon, the above-entitled matter 

7 went off the record at 6:15 p.m.)

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