UNITED STATES DEPARTMENT OF LABOR

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ADVISORY BOARD ON TOXIC SUBSTANCES AND WORKER HEALTH

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SUMMARY MINUTES

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NOVEMBER 30-DECEMBER 1, 2022

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The Advisory Board met at the JW Marriott Las Vegas 

Resort & Spa, Cataluna Room, 221 N. Rampart Boulevard, Las 

Vegas, Nevada, at 9:00 a.m., Steven Markowitz, Chair, presiding.

MEMBERS

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN*

GEORGE FRIEDMAN-JIMENEZ*

MIKE VAN DYKE

MEDICAL COMMUNITY

MARIANNE CLOEREN

STEVEN MARKOWITZ, Chair

MAREK MIKULSKI

KEVIN VLAHOVICH

CLAIMANT COMMUNITY

JIM KEY

GAIL SPLETT

DIANNE WHITTEN

LORNA ZABACK

DESIGNATED FEDERAL OFFICIAL

RYAN JANSEN

*Present via video-teleconference
WEDNESDAY, NOVEMBER 30, 2022

Welcome/Introductions:

Mr. Jansen called the meeting to order at 9:01 a.m. and welcomed 

attendees to the meeting. He reviewed the meeting and public 

comment period logistics and instructed attendees how to find 

meeting-related information on the Board's website. He 

introduced the Board Chair, Dr. Steven Markowitz, to introduce 

the members of the Board.

Chair Markowitz welcomed Advisory Board members, federal staff, 

and members of the public to the meeting. The day prior, the 

Board was given a tour of the Nevada National Nuclear Security

Site, formerly known as the Nevada Test Site.

The members of the Board introduced themselves for the record.

There are several new members of the Board for whom this is 

their first public meeting. These members are Dr. Marianne 

Cloeren, Gail Splett, Dr. Kevin Vlahovich, and Lorna Zaback. Dr. 

Cloeren is a medical doctor with specialties in internal 

medicine and occupational medicine. She is an associate 

professor at the University of Maryland School of Medicine. Ms. 

Splett worked at the Hanford Site for over 40 years. In her last 

decade of employment she served as EEOICPA and Former Worker

Medical Screening Program manager. Dr. Vlahovich is a medical 

doctor with specialties in preventive medicine and occupational 

medicine. He is director of the University of New Mexico 

Employee Occupational Health Services. Ms. Zaback has been 

employed at the Hanford Site for over two decades and works in 

the EEOICPA program office. 

Office of Workers' Compensation Programs (OWCP) Director's 

Welcome: 

Christopher Godfrey, Director of the Department of Labor (DOL) 

Office of Workers' Compensation Programs, introduced himself to 

the Board. Mr. Godfrey spent much of his career before entering 

federal service as a worker compensation attorney. He previously 

served as the Iowa Workers' Compensation Commissioner before he 

took a job with DOL's Employees' Compensation Appeals Board

(ECAB), which is an appellate-level board for federal employee 

workers' compensation claims. He was eventually named chief 

judge and chairman of the ECAB, and he served in that role until 

being named OWCP Director by President Biden in 2021. 

Mr. Godfrey's first actions were to expand the front office with 
the hiring of a transformation officer and diversity, equity, 

inclusion, and accessibility (DEIA) officer. The transformation 

officer is tasked with improving customer service and service 

delivery. The DEIA officer works to ensure DEIA principles are 

incorporated through OWCP. OWCP will also be bringing on an 

ombudsperson in the near future to help monitor the performance 

of the claims process.

OWCP has four priority areas: strengthening the customer 

experience and service delivery so that they are efficient and 

equitable; championing the role of workers' compensation 

programs in ensuring America has good jobs and trustworthy 

social safety; evolving OWCP into a model workplace that 

attracts and fosters diverse, well-trained, and motivated 

employees; and to instill an organizational culture of 

collaboration, communication, and responsiveness that 

strengthens OWCP's performance. 

With regard to the Energy Workers Program, Mr. Godfrey sees this 

unit as a model office within OWCP in terms of the quality of 

their work. He thanked the Advisory Board for their efforts to 

help OWCP and DOL better support workers. 

Review of Agenda: 

Chair Markowitz briefly provided an overview of the Board's 

agenda for its two-day meeting. The agenda includes briefings 

from federal staff on activities at the program level, a history 

of the Board and its statutory purview, an ethics briefing, an 

extensive Board discussion session, and a public comment period.

Energy Statute/Creation of the Advisory Board: 

Amy Liefer, a senior attorney in the DOL Office of the 

Solicitor's Division of Federal Employees' and Energy Workers' 

Compensation (FEEWC), delivered the presentation on the role of 

FEEWC and the legal framework and history of the Energy 

Employees Occupational Illness Compensation Program Act 

(EEOICPA). She began by giving an overview of her office. FEEWC 

is responsible for providing legal support for OWCP's 

administration of EEOICPA-related activity, which includes 

assisting with statutory interpretation questions, issuing 

formal and informal legal opinions, reviewing agency policies

and procedure, and litigation associated with EEOICPA.

EEOICPA was passed by Congress in 2000 to provide medical 

benefits and compensation for employees who worked in the 
nuclear weapons industry. The Act has two relevant parts, Part B 

and Part E, which differ in available benefits and eligibility 

requirements. Part B provides uniform lump-sum payments and 

medical benefits to current and former employees, or their 

survivors, of the Department of Energy, its predecessor 

agencies, and certain of its vendors, contractors, and 

subcontractors, who are diagnosed with a radiogenic cancer, 

chronic beryllium disease, beryllium sensitivity, or chronic 

silicosis as a result of their exposure to radiation, beryllium, 

or silica while employed at covered facilities. Congress 

delineated eligibility criteria under Part B for establishing a 

diagnosis of beryllium-related lung diseases and chronic 

silicosis that must be met in order for a claimant to be 

eligible for benefits. Congress also included statutory 

presumptions for workers' exposure to silica, beryllium, and 

radiation. Part E provides medical benefits and variable lumpsum payments based on a worker's permanent impairment and/or 

qualifying years of lost wages for covered DOE contractor and 

subcontractor employees and, where applicable, their survivors. 

In contrast to Part B, Part E is more expansive in the types of 

covered illnesses and does not contain any Congressional 

diagnostic criteria for establishing an illness. Both parts also 

have provisions governing Radiation Exposure Compensation Act, 

or RECA, claims for certain classes of laborers.

Under the Act, OWCP is responsible for adjudicating claims and 

issuing benefits, while other federal agencies are responsible 

for other portions of the Act. The Advisory Board on Toxic 

Substances and Worker Health was created via a 2014 amendment to 

the EEOICPA. Ms. Liefer briefly reviewed subsequent 

congressional amendments that extended the life of the Board 

through 2024 and expanded its activities. Broadly put, the role 

of the Board is to provide advice to the Secretary of Labor on 

five specific areas. These are: the DOL Site Exposure Matrices

(SEM); medical guidance for claims examiners under Part E; lung 

disease-related evidentiary requirements for claims under Part 

B; reviewing the work of DOL industrial hygienists, staff 

physicians, and consulting physicians to ensure quality, 

objectivity, and consistency; and the claims adjudication 

process generally. The Board may also provide advice on other 

matters at the discretion of the Secretary.

Ms. Liefer concluded by noting two important changes to the 

Board that took place in 2020. That year Congress mandated DOL 

to provide the Board with access to any information that the 

Board considers relevant to carry out its responsibilities, and 

to make available the Program's medical director, toxicologist, 
industrial hygienist, and program support contractors. The 

amendment also requires the Secretary of Labor to publicly state 

whether he or she accepts or rejects the Board's 

recommendations, and to provide either a timeline for when those 

recommendations will be implemented or the reasons why the 

Secretary disagrees with the Board's recommendations.

Chair Markowitz asked for process information on how the Board's 

lifespan got extended, why Board member terms were set at two 

years, and what the process would be to consider lengthening 

both. Ms. Liefer said she would look into those questions and 

get back to the Board. Joseph Plick, Federal Advisory Committee 

Act (FACA) counsel in the Solicitor's Office, said the 

Department is responsible for initiating the re-chartering 

process. He added that two- or three-year terms are fairly 

common across federal advisory committees, but he did not know 

if this Board's terms were set by statute.

Federal Advisory Committee Act (FACA) Review: 

Mr. Plick delivered the presentation on the Federal Advisory 

Committee Act. FACA itself dates back to 1972, but the federal 

government has been using advisory committees throughout the 

nation's history. Over time, however, concerns arose about lack 

of rules and transparency surrounding these committees. While 

Congress acknowledged that federal agencies have a justifiable

need for balanced external advice and expertise, FACA was 

designed to provide some accountability and transparency on how 

that advice is given. FACA includes rules that govern the 

establishment and operation of these committees, which must 

provide relevant advice that adheres to their statutory mandate. 

FACA ensures that committees meet and deliver their findings in 

a timely and cost-effective manner. Under FACA, advisory 

committees can be established by Congress or the President. FACA 

also requires that committees have balanced memberships, hold 

their meetings in public, and maintain records of their 

activities, particularly meeting summaries. Mr. Plick also 

discussed the role of the agency in supporting the functioning 

of the committee and the role of the designated federal 

official. Management of all federal advisory committees is 

handled by the General Services Administration, which receives 

annual reports and maintains FACA-related material. Mr. Plick 

also described the rules for holding closed meetings, which 

occurs very rarely, and has never been needed for this Board. 

FACA also allows for advisory committees to form subcommittees, 

which are not required to hold public meetings as long as the 

work that they do is reported publicly through deliberations at 
the parent committee meeting. Similarly, not all activities are 

required to take place during public meetings, such as 

preparatory work like drafting recommendations, so long as that 

work is reported to the parent committee at the public 

gathering. Finally, Mr. Plick noted that FACA requires that all 

committee records be made available publicly, subject to Freedom 

of Information Act (FOIA) exemptions.

Chair Markowitz asked Mr. Plick if FACA lays out any rules for 

how communication between a committee and its federal agency 

should look, or whether that has to be worked out between the 

committee and the agency. Chair Markowitz expressed the concern 

that the Board does not convene frequently enough to nimbly 

respond to the proposed policy changes that have been sent to 

the Board by the Department, often on short notice. He raised 

the possibility of Board members submitting comments on these 

policies individually outside of formal Board deliberation and 

voting. Mr. Plick said that Board members can submit public 

comments in their individual capacity as members of the public, 

but those comments could not be considered Board advice per 

FACA.

Ethics Rules: 

Vanessa Myers, a senior ethics attorney at DOL, briefed the 

Board on federal ethics rules that govern federal advisory 

committee members. To begin, she encouraged Board members to 

reach out to her team with any ethics-related question they 

might have during their service on the Board. Individuals who 

serve on federal advisory committees are classified by the 

government as Special Government Employees (SGEs), and they are 

subject to a series of ethics rules while they serve on their 

committee. 

Ms. Myers first discussed the rules related to conflicts of 

interest. Board members should recuse themselves from any

particular matter in which they, a close relative, employer, or 

business partner has a financial interest. All Board members 

filled out financial disclosure paperwork so that the Department 

is aware of any possible conflicts before they arise. Ms. Myers 

noted that failure to abide by the conflict of interest rules 

carries potential criminal consequences. Ms. Myers emphasized 

the difference between deliberations on a "particular matter" 

and general policy or recommendations that affect entire 

sectors. Personal conflicts of interest are similar but the 

covered relationships are more broadly defined to include 

friends, former employers, organizations, former clients, et
cetera. Most of these "former" relationships can be limited to 

within the past year. Again, Ms. Myers encouraged Board members 

to reach out with any questions in this regard.

There are also ethics rules regarding outside activities. Board 

members must be sure to not take on work that would require 

frequent recusal from Board matters such that their ability to 

effectively participate on the Board could be jeopardized. Board 

members are not allowed to receive compensation to speak, teach, 

or write if the invitation is related to their status as a 

member of a federal board, or if the invitation was made by an 

individual or organization with an interest in matters affected 

by the Board's work. SGEs are also prohibited from serving as 

expert witnesses in proceedings whose subject matter is related 

to their federal service, and from participating in lobbying 

activities related to their SGE role.

Ms. Myers also briefed the Board on the Hatch Act, which is a 

federal law that prohibits federal employees from participating 

in advocacy for or against political candidates, parties, or 

political groups while on duty or using federal resources. 

Unlike full-time federal employees, SGEs are allowed to conduct 

political fundraising activities and run for elected office on 

days or hours when they are not actively providing service to 

their committee. SGEs are also restricted from accepting gifts 

from individuals who have business affected by their committee, 

although small value gifts and gifts from individuals with whom 

the committee member has personal relationships are generally 

permitted. Other ethics rules that Ms. Myers discussed were the 

misuse of government resources and misuse of non-public 

information.

Overview of EEOICPA/Statutory Areas for the Board:

Rachel Pond, Director, Division of Energy Employees Occupational 

Illness Compensation (DEEOIC), delivered the presentation. 

Building off the overview provided earlier by Ms. Liefer, Ms. 

Pond provided further details on EEOICPA and the role of her 

division. The purpose of both the Act and DEEOIC is to protect 

the interests of workers who were injured or became ill on the 

job, or their survivors, by making timely, appropriate, and 

accurate decisions on claims, and providing prompt payment of 

benefits to claimants that are determined to be eligible. DEEOIC 

has strived over its existence to streamline and improve the 

claim process.

Ms. Pond detailed the compensation that is allowable under Parts 
B and E, which are capped at $400,000 for both parts combined. 

Compensation is disbursed as a lump sum payment. Claimants are 

also eligible for medical benefits for accepted medical 

conditions. Ms. Pond also reviewed the eligibility criteria for 

both parts, which are set out in the statute. Part B covers a 

broader array of workers, while Part E is mainly for DOE 

contractors and subcontractors. Part B is also more restricted 

in the types of medical conditions it covers. 

Ms. Pond then discussed how DOL claims examiners verify the 

employment of claimants by seeking records from DOE, specific 

worksites and employers, and/or other federal agencies. DOL also 

has to confirm medical eligibility for claims, which can be a 

complex and challenging process. Part B covers cancer, chronic 

beryllium disease, chronic silicosis, and provides supplemental 

compensation for awardees under Section 5 of RECA, which covers 

workers employed in the mining, milling, or transportation of 

uranium ore. Chronic beryllium disease is defined in the statute 

and has been a focus of this Board in the past. Part E is 

considerably more open-ended and covers any condition that an 

employee could have contracted as a result of exposure to toxic 

substances. Ms. Pond said that this open-endedness has been one 

of the challenges for DOL; there are voluminous records and 

limited medical staff qualified to review claims. She noted that 

the Advisory Board has been of great help assisting DEEOIC in 

developing tools and providing oversight to improve the Part E 

claims process.

Ms. Pond went into greater detail on how groups of workers can 

be considered eligible for cancer coverage under Part B. One 

pathway is through Special Exposure Cohorts (SECs) which are for 

certain worksites with radiation-related cancer presumptions and 

terms of employment. New SECs are determined by the National 

Institute for Occupational Safety and Health (NIOSH) and 

administered by DOL. Ms. Pond also briefly described the Part B 

dose reconstruction process that NIOSH conducts for workers not 

covered by an SEC. She then shifted gears to discuss Part E 

eligibility. DOL has to establish that a claimant had an 

exposure to a toxic substance, and that it is “at least as 

likely as not a significant factor in causing, contributing to, 

or aggravating” the claimed illness. Much discussion with the 

Board has revolved around the definition of "significant 

factor," which remains an ongoing challenge. 

One of the most important tools that DEEOIC has developed to 

assist in the Part E claims process is the Site Exposure 

Matrices. The SEM is a searchable database of facility-specific 
inventories of toxic substances that can be used by claims 

examiners. The database is also publicly available. The SEM will 

be discussed in greater detail later in the day. Another 

important tool is the Occupational Health Questionnaire that 

claimants fill out early in the claim process. Both of these 

tools have been improved over the years in consultation with the 

Advisory Board.

Ms. Pond provided an overview of the claims adjudication process 

and timeline. Claims can be filed by mail, online, or in-person 

at one of the 11 Resource Centers around the country. The 

claimant then completes the Occupational Health Questionnaire

and provides additional evidence to the claims examiner, if 

requested, such as medical documentation or employment records. 

The claimant's District Office then issues a recommended 

decision to accept or deny the claim. Claimants may appeal 

denials to the national Final Adjudication Branch, which can 

occur in writing or as a hearing. Claimants may re-open cases if 

new documentation is discovered after denial. 

Dr. Cloeren asked if claimants who file under one part are 

automatically considered for the other. Ms. Pond said the claims 

examiner will do so if the claimant's employment history 

indicates potential eligibility for the other part. She noted 

that any claim accepted for Part B is automatically accepted for 

Part E. Jim Key discussed a case of a worker covered by one of 

the original SECs who developed cancer and filed a claim, but 

ultimately passed away not long after the claim was accepted. He 

expressed the hope that a fast-track claims review process could 

be established for SEC workers who develop cancer. Ms. Pond said 

expedited review does exist for terminal cases, but sometimes it 

can be a challenge to define terminal, and that is an issue the 

office is working to improve on.

Ms. Pond then discussed the staff involved in reviewing claims 

and supporting DEEOIC. These include industrial hygienists (IHs) 

and Contract Medical Consultants (CMCs) who serve as medical 

science experts and assist claims examiners in determining 

eligibility and, most importantly, causation. Ms. Pond 

emphasized that medical science staff do not make claims 

determinations; they provide information and medical opinions to 

the claims examiner to help them make their determination. The 

Board has played an important role in fine-tuning how the IHs 

evaluate evidence. DEEOIC also employs health physicists, 

registered nurses, and a toxicologist. The CMCs play an 

important role supplementing and interpreting the medical 

documentation submitted by claimants from their primary care
physicians, who usually are not experts in exposure and disease 

causation. CMCs also assist in impairment determinations, when 

requested by the claimant, and wage loss cases. Impairment is an 

important component of Part E, which allows for compensation 

based on percentage of whole-person impairment according to the 

American Medical Association guidelines for the evaluation of 

permanent impairment. Wage loss is a measurement of the 

decreased capacity to work caused by an accepted medical 

condition.

DEEOIC has been working to make it possible for claimants to 

submit more forms electronically and to conduct outreach to the 

community to keep people up-to-date on new features and policy 

changes. Ms. Pond noted the top five accepted conditions for 

both parts. For Part B, they are skin cancer, lung cancer, 

urinary/bladder cancer, colorectal cancer, and pancreatic 

cancer. For Part E, the top five are skin cancer, chronic 

obstructive pulmonary disease, lung cancer, silicosis, and 

hearing loss. Over the life of EEOICPA, over $22 billion has 

been disbursed in total compensation and medical coverage.

Since the Board was established in 2015, the Board and DOL have 

worked together to develop important updates to the SEM to 

include health effects data associated with toxic substance 

exposures; redesign the Occupational History Questionnaire; 

develop new presumption standards for COVID-19, asbestos-related 

diseases, and hearing loss due to ototoxic substances; and 

refine language in the Procedure Manual related to asthma, the 

six-minute walk test, and IH exposure characterization. Ms. Pond 

noted that DEEOIC usually updates the Procedure Manual twice a 

year, but the Board can recommend changes to the manual at any 

point.

Ms. Zaback noted that skin cancer is the top accepted condition 

for both parts, but is not one of the 22 accepted cancers in the 

law. She asked if there is a way to update that list to include 

skin cancer. Ms. Pond said that because those cancers are 

specifically set out in the law itself, it would take 

congressional action for the list to be amended. Dianne Whitten 

asked why the claims examiner is limited to listing seven toxic 

substances when referring cases to IHs. John Vance, Branch 

Chief, Policy, Regulations and Procedures Branch, DEEOIC,

acknowledged that workers might be exposed to a greater number 

of substances, but DOL has to account for the need to process 

claims in an efficient and timely manner given its caseload. The 

claims examiner lists the substances most likely to have a 

causal impact. He added that further substances can be added to 
the profile when requested by the claimant. Chair Markowitz 

asked how the claims examiner whittles down the list, given that 

they are not an occupational health expert. Ms. Pond and Mr. 

Vance said they rely on the medical documentation provided by 

the claimant, the SEM, and other information in the case file.

This is another instance where DOL has to form a balance so that 

IHs are not overburdened and may provide input in a timely 

manner.

Dr. Cloeren asked if the Occupational History Questionnaire is 

publicly available. Ms. Pond said it is, and is included in the 

Procedure Manual. Dr. Cloeren also asked if claimants whose 

conditions get worse over time can re-apply for further 

compensation. Ms. Pond said claimants can request a new 

impairment evaluation every two years until the statutory 

compensation cap is reached. Dr. Cloeren said it might be a good 

idea to develop a central resource for former workers to search 

through SEC classes for which they might be eligible. The Board 

also discussed with Ms. Pond some of the challenges of District 

Offices handling claims from sites not within its historical or 

geographical area of expertise. Ms. Pond said those issues are 

being addressed with training and will improve over time. Dr. 

George Friedman-Jimenez raised the issue of skin cancers caused 

by non-ionizing radiation, such as from sun exposure, which 

seems to be a gap that does not fall under the purview of this 

Board or the Advisory Board on Radiation and Worker Health. Ms. 

Pond agreed there is a gap, and that the statute does not 

account for those conditions which appear to be occupational but 

are not connected to toxic substances or radiation. Mr. Vance 

said the Board could play a role in developing a presumption for 

skin cancers caused by chemical exposures, but to expand the 

definition of toxics to include ultraviolet light would require 

Congress to amend the statute.

Chair Markowitz asked what percentage of claims over the last 

couple of years has been referred to an IH or the CMC. Ms. Pond 

said she did not have those numbers at hand, but her feeling is 

the number being sent to IHs has been increasing in recent 

years, and fewer are going to the CMC. Chair Markowitz also 

asked DEEOIC to submit to the Board the results of any audits of 

CMC performance that have been conducted since the Board last 

saw those reports. Chair Markowitz expressed his willingness to 

coordinate with the Advisory Board on Radiation and Worker 

Health on any matters where such coordination would be helpful. 

He also offered the Board's assistance to DEEOIC in developing 

any new presumptions under the Act. Ms. Whitten mentioned a case 

of a worker with a terminal illness that sounded like it had 
been mis-adjudicated. Ms. Pond and Mr. Vance explained how the 

two-stage determination process is meant to mitigate any errors 

that occur, but they encouraged erroneous cases to be brought to 

DEEOIC's attention. The Board also discussed new presumption 

criteria for silicosis and how the fast-track process for 

terminal cases works. 

Program Updates (Last 12 Months):

Mr. Vance delivered the presentation on recent program updates. 

Mr. Vance oversees the policy group that performs and publishes 

updates to the DEEOIC procedures, and also manages the Medical 

Health & Science Unit. The Procedure Manual (PM) is an important 

document that governs the claims adjudication process at DEEOIC, 

and, as Ms. Pond mentioned, it is updated twice yearly. Updates 

mostly are a result of issues that arise from day-to-day claims 

adjudication activity or because of recommendations or input 

from the Board. Mr. Vance emphasized that updating the PM is a 

complex process because of the regulatory, legal, and 

stakeholder vetting each change has to go through. Urgent 

updates can be made on an interim basis via Bulletins. Other 

informational guidance or personnel updates are issued in 

Circulars.

Mr. Vance reviewed the two PM updates, Versions 6.0 and 7.0, 

that occurred this year, in April and October. Version 6.0 

designated claims examiners as responsible for managing the 

authorized representative appointment process and updated 

responsibilities for identifying and responding to potential 

conflicts of interest in the claims process, among other updates 

to clarify language in the PM. Version 7.0 officially added 

COVID-19 as a compensable illness if certain presumptive 

criteria are satisfied, added clarifications on the silicosis 

standard, adopted uniform formatting standards for decisions 

issued by the DEEOIC, and provided clarification for staff on 

how to interact with individuals with power of attorney for 

claimants, among other changes. 

Mr. Vance briefly described the Bulletins that were issued over 

the past year, including Bulletins on the use of telemedicine 

for certain situations involving home and residential healthcare

determinations, and another governing industrial hygienists' 

reporting of exposure levels to eliminate the categorization of 

exposures "within regulatory limits," which the Board had argued 

was vague and hard to define. Mr. Vance also noted several 

recent Circulars, including one that announced the Savannah 

River Site SEC and one to alert interested parties that 
telemedicine was permissible for routine medical care provided 

it was allowed under state law. Mr. Vance highlighted two 

Federal Register Notices issued by the Department. One notice 

published an updated list of DOE covered facilities. The second 

laid out a set of expectations regarding the conduct of lay 

representatives in dealing with OWCP, and how staff should 

respond to inappropriate behavior. 

Mr. Vance then touched on some of DEEOIC's efforts to facilitate 

electronic claims submittal. The main avenue for this process is 

the Energy Document Portal (EDP) through which claimants can 

file a new claim, upload documents to their case file, check the 

status of their claim, and complete their benefit payment forms

if their claim is accepted.

Finally, Mr. Vance emphasized the important role the Board plays 

in initiating change and the valuable input it provides in 

support of DEEOIC's work. 

Chair Markowitz raised the issue he brought up earlier with Ms. 

Pond about the Board's ability to provide input on policy 

changes before they are finalized. He acknowledged Ms. Pond's 

statement that Board comments on the PM are welcome at any time 

and can be incorporated at the next update, but he nevertheless 

believes the Board would benefit from being given sufficient 

time to comment when a specific update is initially being 

considered by the Department. One suggestion from the Board was 

to pre-schedule closed meetings to discuss proposed policy 

changes in draft form and/or discuss confidential information. 

Department staff noted that closed meetings can be more 

logistically difficult than open meetings, and expressed the 

concern that adding another procedural layer to the policy 

update process could lead to delays. However, the Department 

would work to try to find middle ground if the Board were to 

make that recommendation. Another idea was to use the 

intervening period between a Circular and its incorporation in 

the PM as the time for the Board to deliberate on the update 

being announced in the Circular. Chair Markowitz said the Board 

would discuss this further later on in the meeting in hopes of 

coming up with a recommendation for the Department.

Site Exposure Matrices (SEM) Demonstration:

Mr. Vance next demonstrated to the Board how the SEM and its 

accompanying website are utilized. As previously mentioned, the 

SEM is one of the most important tools for evaluating health 

effects and exposure data for EEOICPA claims. The website 
contains educational material and resources to assist in using 

the SEM. The SEM is what is called a relational database, and it 

contains information based on data collection efforts at all of 

the Part E-covered DOE facilities. The database is consulted 

daily by DEEOIC staff and is maintained by a DOL contractor 

called Paragon, who also conducts data collection efforts on 

behalf of the Department. A great deal of effort went into 

gathering old, paper-based data from the early atomic weapons 

program and digitizing it to be useful in the database, but 

there is invariably other data that was missed. Mr. Vance stated

that the public is welcome to submit data on exposures or toxic 

substances and the Department is always seeking new data. In 

response to a question from Dr. Cloeren, Mr. Vance said that 

toxic substances are defined as any radiological, chemical, or 

biological process for creating disease.

Users can search the SEM by facility. Mr. Vance noted that the 

public-facing version of the SEM is updated every six months 

after new data is cleared for public release; DEEOIC staff use a 

more real-time version that is constantly updated. In response 

to a question from Aaron Bowman, Mr. Vance said that the SEM 

generally does not have temporal information on when a specific 

substance was present at a site, only that the substance was 

present at some point.

Mr. Vance walked through a demonstration of how a claims 

examiner might utilize the SEM to gather information for a 

claim. As an example, he showed which toxic substances the SEM 

associates with chronic obstructive pulmonary disease for a 

hypothetical Nevada Test Site worker, which can be sorted by job 

type and/or job process (e.g., labor and/or concrete mixing). 

IHs can then use this data to develop a more descriptive 

characterization of the potential exposure that can be 

considered by a medical expert. Mr. Vance summarized the role of 

the claims examiner as identifying the priority targets for the 

toxic substance characterization by the industrial hygienist. He 

encouraged Board members to familiarize themselves with the SEM 

in their free team to get a better grasp of its capabilities. 

In response to questions from the Board, Mr. Vance discussed how 

the SEM naturally changes over time as more data is added to the 

system. Mr. Key raised a concern that trichloroethylene is 

listed as a toxic substance for the laborer category at the 

Portsmouth and K-25 Gaseous Diffusion Plants, but not for 

Paducah, despite the latter plant having conducted the same work 

as the other two. Mr. Vance responded that the SEM is based on 

available documents and materials. He admitted it will never be 
100% comprehensive given the age of many sites and recordkeeping disparities, but he encouraged anyone with information 

about particular facilities to submit that information to DEEOIC 

to make the database as accurate as possible. Dr. Vlahovich 

asked if the SEM accounts for PPE practices or standards at 

specific sites or time periods. Mr. Vance said it does not, but 

that is a factor that the IHs consider in their assessments. 

Chair Markowitz asked how the SEM accounts for changes in the 

state of the science regarding disease causation. Mr. Vance said 

DEEOIC relies on the Board to assist in the process of keeping 

the Department up-to-date on medical advances or new science. 

One such effort was the Board's review of the International 

Agency for Research on Cancer (IARC) list of probable 

carcinogens that resulted in the addition of several health 

effects to the SEM. The Department can, and does, make these 

kinds of updates on its own, as well.

Board Discussion:

Chair Markowitz opened the Board discussion period by reviewing 

the charge of the Board and some of its recent recommendations 

for the new members. The Board has been tasked with providing 

input on updates to the SEM, providing recommendations on the 

medical guidance for the claims examination process, reviewing 

evidentiary evidence for Part B lung diseases (i.e., chronic 

beryllium disease and chronic silicosis), reviewing the work of 

the Department's IHs and CMCs, and "such other matters as the 

Secretary considers appropriate."

Chair Markowitz then discussed the Board's most recent 

recommendations. One was to recommend that the Department 

encourage Congress to amend the statute to make three borderline 

beryllium lymphocyte proliferation test (BeLPT) results 

equivalent to an abnormal result for purposes of determining 

beryllium sensitivity. There are encouraging signs that Congress 

may make these changes in the coming National Defense 

Authorization Act omnibus. Ms. Splett added that Senator Patty 

Murray from Washington has also introduced a separate Beryllium 

Testing Fairness Act that would make the recommended changes, as 

well. Another Board recommendation was that IH assessments 

should include language that there is "no evidence that the 

claimant's exposure exceeded regulatory standards" only when 

there is affirmative evidence in support of such a statement. 

The Department ultimately agreed with this recommendation.

Chair Markowitz then described the Board's past efforts 

reviewing Department quality assurance (QA) procedures and 
findings. One topic that arose from that project was the lack of 

comprehensive QA review of the accuracy of CMC opinions.

Chair Markowitz raised the topic of job categories that work 

throughout a specific site, rather than just a few locations, 

and how to account for their potential exposures, particularly 

when there are wide variations in the SEM for these categories 

from site to site. Examples of this job category could include 

firefighters or security guards. Documentation is often lacking 

for these job categories, which makes it difficult for the SEM 

to reflect the true scope of possible exposures. The Board 

discussed possible language that could direct the IHs to 

consider this expanded exposure potential for these unique job 

categories. Mr. Vance acknowledged that one of the major 

challenges for the program is the absence of hard evidence for 

claims, and something it strives to mitigate to the extent 

possible. Mr. Key talked about his efforts to petition Congress 

for the law that eventually became EEOICPA, and his belief that 

the federal government is in possession of classified material 

that could shed more light on exposures at AWE sites. Chair 

Markowitz noted that the sheer volume of even unclassified 

material limits the ability of the Board to conduct thorough 

reviews on its own. Ms. Zaback said that NIOSH's activity to 

gather data and perform dose reconstructions in support of the 

Radiation Board seems like a more constant and thorough process 

than what is done by DEEOIC and its contractor. Ms. Pond said 

DEEOIC and its contractor are always doing research, but 

admitted that it has more limited staff and resources than NIOSH 

does, which likely accounts for the difference Ms. Zaback 

described. Chair Markowitz said this was a topic that the Board 

can deliberate on further later in the meeting.

After a short break, Chair Markowitz reviewed another series of

Board recommendations relating to asbestos and expanding the 

list of job titles presumed to have asbestos exposure. Chair 

Markowitz described the history of the Board's efforts on this 

topic and how it identified certain job titles that were not 

covered by DOL. The Department accepted most of the 

recommendations but there is an ongoing back and forth between 

the Board, DOL, and Paragon over whether a few particular job 

classes should be included, namely chemical, mechanical, and 

industrial safety engineers. As a way of potentially settling 

the question, Chair Markowitz posited the idea of a search of 

accepted EEOICPA claims for mesothelioma or asbestosis claims

and/or by the aforementioned job titles to see if there is a 

significant correlation. Mr. Vance said DEEOIC's claims 

adjudication database is not searchable by job title, although 
that information does exist in the claim file itself. They can 

search by accepted condition, but Mr. Vance cautioned that 

mesothelioma is a small population with a very high acceptance 

rate regardless of job class, so the conclusions that could be 

drawn might be limited. Mark Catlin suggested that the Board 

recommend that DOL consider making its claims database 

searchable by job title. Board members raised the idea of 

expanding the search to claims related to pleural scarring 

caused by asbestos, which would be a larger sample size than 

mesothelioma or asbestosis.

Chair Markowitz then presented program data on the most common 

accepted conditions, the number of claims, and acceptance rates. 

The top two accepted conditions are skin cancer and COPD. The 

acceptance rate for most of the top 20 conditions is above 50%, 

with a range of all conditions 8% to 83%. By far the most common 

reason for denial is negative causation. Chair Markowitz also 

presented data on the top 10 cancers and top 10 respiratory 

conditions. Dr. Friedman-Jimenez raised a longstanding concern 

of his that the statute does not recognize COPD caused by 

exposure to vapors, gases, dusts, and fumes (VGDF) because they 

are a mix of substances rather than one identifiable substance. 

Dr. Friedman-Jimenez believes VGDF causation is well-established 

in the scientific literature. Chairman Markowitz acknowledged 

this stalemate between the Board and the Department, and 

suggested this could be an area where Congress would have to

amend the statute. Dr. Cloeren said it would be helpful if 

claims data could be broken down by consequential or secondary

conditions versus primary condition. Chairman Markowitz pointed 

out that the accepted rates (percentages) in the Excel sheet

were erroneous because the denominators included claims that are 

still pending. Dr. Bowman said a next step for the Board might 

be to dig deeper into conditions that are being accepted at a 

lower rate than might be expected.

Public Comment Period:

The first public commenter was Sandra Thornton. Ms. Thornton 

discussed the difficulties her brother-in-law has had getting 

his claims processed and approved, and errors made by the 

Paducah Resource Center that delayed the process. They have 

submitted 25 claims, and only two have been approved. The others 

are in various stages of appeal. Ms. Thornton discussed how the 

Paducah site kept notoriously poor records but that it was 

Congress' intent that the Department find a way to cover these 

workers. She believes DEEOIC is not living up to its duty as set 

out by Congress.
Donna Hand delivered comments about the BeLPT test and problems 

that she sees with how DEEOIC handles beryllium-related claims, 

which she believes is far too restrictive. She also emphasized 

that the statute does not specify specific levels or specific 

toxins, and she believes DEEOIC's practice is in conflict with 

this fact. Ms. Hand pointed out that workers of certain 

classifications also performed other work outside their duties 

at certain points, and this is not accounted for by the program. 

She also argued that DEEOIC should consider all cancers that are 

recognized by the National Cancer Institute, not only the 

statutory specified cancer list.

D'Lanie Blaze, CORE Advocacy, commented on how the Department's 

shift away from keeping claims organized geographically by 

District Office has degraded the value of the institutional 

knowledge for the claims adjudication process that existed prior 

to the 2018 change. Ms. Blaze believes the new system increases 

the likelihood of errors and the site familiarity needed to 

maximize the usefulness of the SEM. Even if erroneous claims are 

corrected by the Final Adjudications Branch, this will have 

resulted in a costly delay. She also expressed concern about 

exposure data being removed from the SEM, which she believes 

should only occur when there is overwhelming evidence in support 

of doing so. 

Stephanie Carroll, an authorized representative specializing in 

chronic beryllium disease claims, expressed the opinion that 

borderline BeLPT results should be considered as abnormal under 

the statute. She said the concept of a borderline result did not 

exist prior to the Act, and that one high stimulating index 

result should be considered abnormal. Ms. Carroll also expressed 

disapproval of toxins or exposures being removed from the SEM 

because it can create perceived unfairness among the claimant 

community. For example, individuals who filed claims earlier and 

received compensation based on something that was later removed 

from the SEM and now claimants applying for the same substance 

or exposure would be denied. Ms. Carroll suggested that the 

Board review any documents used to remove toxic substances from 

the SEM.

THRUSDAY, DECEMBER 1, 2022

Call to Order:

Mr. Jansen called the second day of the meeting to order at 8:28 

a.m. and reviewed the meeting agenda and logistics. Chair 
Markowitz led the Board and attendees in a round of 

introductions. 

Department of Energy (DOE) Update:

Greg Lewis, Director, DOE Office of Worker Screening and 

Compensation Support, delivered the presentation. Mr. Lewis' 

office has two overarching functions: funding and supporting 

DOE's role in the EEOICP, and funding and supporting the Former 

Worker Medical Screening Program (FWP). Under the EEOICP 

umbrella, the office's role is primarily to respond to requests 

for information from NIOSH and DOL regarding individual claims. 

It also provides assistance to DOL and NIOSH on large-scale 

research and site characterization projects, such as SECs or the 

SEM, as well as research to determine site coverage.

DOE's site points-of-contact (POCs) play an important role in 

the claims process. They manage their site’s response to records 

requests, coordinate research activities, interviews with 

current and former workers, and provide EEOICPA information to 

workers, among other activities. Mr. Lewis provided further 

detail on the claims request process, the bulk of which will be 

employment verification. As the claim process advances, DOL will 

also submit Document Acquisition Requests (DARs) for information 

on the employee's work history and known exposures. DOE also 

responds to NIOSH requests for radiological monitoring and dose 

data.

He also provided a brief history of the search for records and 

how it has expanded and modernized over the years, including the 

development of the Secure Electronics Records Transfer system, 

or SERT. This system is a secure, online system that all DOE 

facilities have access to, through which data requests can be 

entered and processed electronically. Mr. Lewis walked through 

an example of how a claim request might be processed by a DOE 

POC, noting that the complexity can vary depending on the nature 

of the employee's work history. Dr. Bowman asked if DOE sends 

general work site exposure data in cases where specific records 

for the claimant cannot be found. Mr. Lewis said they normally 

do not, except in cases of construction subcontractors where 

data-keeping practices were less fulsome. 

Mr. Lewis noted that DOE responds to approximately 14,000 

records requests per year, from over 25 DOE facilities. For 

FY22, DOE had an 85% on-time response rate, which was a notable 

decrease from the pre-pandemic 98% rate. Mr. Lewis attributed 

the delay to pandemic-related site closures and changes to PII 
redaction practices. DOE hopes to get back above 90% next year.

Mr. Lewis also discussed his office's role supporting the

creation of the SEM and continued research. Mr. Lewis discussed 

with Dr. Bowman how the security classification process affects 

the public-facing version of the SEM and whether exposure data 

is ever removed or classified. Mr. Lewis said he is only aware 

of language being changed to be slightly less specific when 

describing locations, but emphasized that the presence of a 

toxic substance at a site is never classified. 

Mr. Lewis then provided a brief overview of DOE's involvement in 

EEOICPA and FWP worker outreach. Under the FWP, which covers all 

former workers at DOE sites, Mr. Lewis' office is responsible 

for identifying and notifying former workers at risk for 

occupational disease, offering medical screening, and providing

information and assistance about medical follow-up and 

compensation. Dr. Cloeren asked if any worker can access a copy 

of their DAR. Mr. Lewis said workers can receive a copy through 

a formal claims process, a FOIA request, or by requesting it 

directly from DOE. 

Board Discussion (Continued):

Chair Markowitz began the Board discussion session by noting the 

passing of Terrie Barrie of the Alliance of Nuclear Worker 

Advocacy Groups (ANWAG). Ms. Barrie was a long-time claimant 

advocate and regular attendee at Advisory Board meetings. Chair 

Markowitz said her input and critiques were of great assistance 

to efforts to improve the program, and her presence will be 

missed. 

Chair Markowitz reviewed the discussion topics that arose during 

the first day of the meeting. The Board first took up the issue

of whether chemical engineers should be presumptively regarded 

as having significant exposure to asbestos prior to 1995. Board 

members discussed if they could identify a set of claims data to 

review that might provide data to support this proposal. DOL and 

Board members had concerns about the amount of work such a 

project might entail and whether it would produce enough data to 

be worthwhile. Acknowledging the possibility of small data sets, 

Chair Markowitz suggested reviewing denied mesothelioma claims 

over the past several years. Dr. Cloeren said they might miss 

trends if they only look at denied claims. Chair Markowitz said 

that would greatly increase the amount of work. Dr. Cloeren said 

they could start by just asking for the numbers of denied and 

accepted mesothelioma claims. Member Bowman said the Board was 
only interested in claims denied for negative causation. Chair 

Markowitz formally moved that the Board request yearly data, for 

the past five years, on mesothelioma claims denied for negative 

causation. Dr. Friedman-Jimenez expressed his opinion that based 

on the top 10 claims data provided earlier by DOL, the number of 

mesothelioma claims would likely be too small to provide 

meaningful data. He noted that presumptions are just one part of 

the larger claims process, and engineers can still be considered 

for asbestos-related claims on a case-by-case basis.

The Board next discussed the issue of site-wide job titles, such 

as security guards, firefighters, et cetera, that may have their 

exposures under-calculated in the SEM. The Department has 

rejected recommendations on this topic in the past, but Chair 

Markowitz proposed a reframed recommendation that might be more 

acceptable. The suggestion would be for DOL to direct that 

claims from this limited number of job titles would be sent to 

the industrial hygienist to consider a broader set of exposures 

at the site where that claimant worked. The Board debated 

whether to specify which job titles fit this category in its 

recommendation or to leave it undefined. One concern raised by 

Board members was that the sites often had different names for 

these types of job classes. Member Zaback suggested DOL could 

reach out to the sites to find out what names they used in order 

to develop a master list of site-wide job titles. 

Chair Markowitz shifted the discussion to the topic of the 

Board's ability to review DOL policy changes in a timely manner, 

that is, prior to issuance of policy changes. Given the 

complexity of the process and the desire to not cause delays to 

policy updates, the Board agreed to not make a recommendation at 

this time.

The next topic was whether the Board wants to request more 

information from DOL on how information in the SEM gets removed. 

One concern raised by Board members was the lack of transparency 

on why information has been changed or removed, particularly 

when it might affect a large number of potential claimants. 

Chair Markowitz asked Mr. Vance if Paragon keeps a log of the 

changes it makes to the SEM. Mr. Vance said he believes they do. 

He reiterated that Paragon has qualified researchers who are 

making these changes based on the best available evidence. He 

believed Paragon would be happy to provide the Board information 

on how and why certain changes were made, should the Board 

request. Dr. Bowman suggested that SEM updates should be 

disseminated in a similar manner as Procedure Manual updates. 

Mr. Key agreed, and added his opinion that historical language 
should remain in the SEM, rather than being removed entirely.

Dr. Van Dyke said he would like to have a Paragon representative 

attend a Board meeting to answer questions from the Board. Other 

Board members agreed, and suggested regular attendance at Board 

meetings by Paragon staff would be beneficial. Member Splett 

said she would like to see Paragon explain their process using 

specific examples. Chair Markowitz added that he would like for 

Paragon to provide information on its internal work processes 

regarding the SEM.

Chair Markowitz asked for volunteers from the Board to work on 

drafting proposed language regarding the topics for 

recommendations or information requests that have been discussed 

at the meeting, to be voted on or issued at a later date. 

Member Bowman raised the topic of the SEM's lack of temporal 

information, suggesting this was a source of confusion when 

changes are made. Board members noted that incorporating 

temporal data into the SEM would be a massive undertaking. Mr. 

Vance explained how, to help account for temporal factors, IHs

rely on their general knowledge of the chronology of atomic 

weapons production across the DOE complex, among other factors, 

and the data provided in the SEM.

The Board next discussed changes to the Procedure Manual's

instructions for IHs on how to characterize exposure. These 

changes came about following the Board's recommendation to 

remove language about regulatory exposure levels. The new 

language includes a new level of exposure in addition to the 

existing significant-low, significant-moderate, significanthigh, and incidental exposures. The new tier is “more than 

incidental, but not significant.” This category includes 

exposures where there is no indication of a violation of 

exposure levels or an incident, there is no substantive evidence 

of significant exposure in the records, and/or there is 

documented use of PPE. Member Van Dyke expressed his opinion 

that this new category was just as vague as the language it was 

meant to replace. Dr. Cloeren worried that the new category 

would serve as a catch-all for exposures that lack 

documentation, including some that might otherwise be determined 

to be significant. Mr. Vance said this language was designed to 

account for the gray area where exposures are claimed in the 

later years of the DOE complex where stringent protective 

practices and record-keeping were in place, but the 

documentation to support the exposure is lacking. Chair 

Markowitz asked how the word 'significant' became attached to 

exposure levels, given that that is not how the language is 
phrased in the statute in his reading. Mr. Vance said DOL needed 

to develop an exposure classification system at the outset, and 

this language is commonly used in IH processes. DOL then used 

this system to build out the presumptions. He noted that one 

reason that the new tier is not phrased as 'significant-very 

low' is because any significant exposure automatically triggers 

a presumption. Chair Markowitz opined that it might be more 

accurate to combine the new tier and incidental exposure tier 

into one 'unlikely or no exposure' tier. Mr. Vance pointed out 

that the purpose of the language is to provide an accurate 

description to the physicians, who then make their own 

professional judgment. Dr. Friedman-Jimenez said that the word 

'significant' has become a topic of controversy in the 

scientific literature, particularly in statistical contexts, and 

said he thinks DOL needs to define the word for its purposes. 

This might be an area that the Board can provide input on. Mr. 

Vance said the bulletin made an attempt to define what the word 

means in this context, but DOL would be open to the Board's 

assistance in refining the definition. Board members agreed to 

form a working group to draft a proposed recommendation on the

topics of the new exposure tier and the definition of 

'significant.'

Chair Markowitz then discussed the next steps for the Board case 

reviews. Dr. Cloeren asked whether DOL could set up a web-based 

share site to assist the Board in this effort, rather than the 

current method of using CDs. Chair Markowitz proposed 

establishing a work group to delineate the goals of the case 

review effort in anticipation of the Board receiving contract 

support staff to begin the project in earnest.

Regarding the site-wide job titles topic, Dr. Bowman made a 

motion that the Board recommend that "the Department provide 

instruction to CE, IH, and CMC reviewers that if there is 

evidence that a claimant's employment led to their routine 

duties being conducted widely across a site, that this be 

specifically noted in the claim file and that consideration be 

given in establishing toxic substance exposure and causation for 

exposures that are site-wide and not just limited to their work 

area or record." The Board voted unanimously to approve the 

motion. 

Review of Public Comments:

Chair Markowitz pointed the Board to written comments submitted 

by Elizabeth Brooks regarding a change in the Procedure Manual 

that limited Part B compensation eligibility for Nevada uranium