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UNITED STATES DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES

AND WORKER HEALTH

+ + + + +

COMBINED SUBCOMMITTEE ON MEDICAL ADVICE RE:

WEIGHING MEDICAL EVIDENCE AND

SUBCOMMITTEE ON IH & CMC AND THEIR REPORTS

+ + + + +

MONDAY

OCTOBER 23, 2017

+ + + + +

The Advisory Board met telephonically 

at 1:00 p.m., Victoria Cassano and Rosemary Sokas, 

Co-Chairs, presiding.

MEMBERS

SCIENTIFIC COMMUNITY:

LESLIE I. BODEN

KENNETH Z. SILVER

MEDICAL COMMUNITY:

VICTORIA A. CASSANO, Co-Chair 

ROSEMARY K. SOKAS, Co-Chair

STEVEN MARKOWITZ

CLAIMANT COMMUNITY:

FAYE VLIEGER
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DESIGNATED FEDERAL OFFICER:

CARRIE RHOADS

ALSO PRESENT:

MELISSA SCHROEDER, SIDEM 
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TABLE OF CONTENTS

Page

Welcome and Roll Call

Carrie Rhoads............................ 3

Outline of Proposed Agenda

Rosemary Sokas........................... 8

Report on July 11, 2017 Meeting

with the Department of Labor

Rosemary Sokas........................... 9

Victoria Cassano........................ 15

Kenneth Silver.......................... 16

Discussion of Proposal for Subcommittees

on Medical Advice Re: Weighing Medical

Evidence and Subcommittee on IH & CMC

to Merge

Rosemary Sokas, Moderator............... 18

Preparation for Upcoming 

November 2017 Full Board Meeting

Rosemary Sokas, Moderator............... 25

Adjourn

Carrie Rhoads........................... 56
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1 P-R-O-C-E-E-D-I-N-G-S

2 1:07 p.m.

3 MS. RHOADS: Good afternoon or 

4 morning, everyone, depending on where you are. My 

5 name is Carrie Rhoads and I would like to welcome 

6 to today's teleconference meeting of the 

7 Department of Labor's Advisory Board on Toxic 

8 Substances and Worker Health, the Combined Meeting 

9 of the Subcommittee on Medical Advice for Claims 

10 Examiners Regarding Weighing Medical Evidence and 

11 the Subcommittee on IH and CMC and Their Reports.

12 I am the Board's designated federal 

13 officer or DFO for today's meeting.

14 First, we'd like to thank the Board 

15 Members for their work and for all of the time that 

16 they put in for us. I will introduce the Board 

17 Members on the subcommittees and do a quick roll 

18 call.

19 Dr. Victoria Cassano is the chair of the 

20 Weighing Medical Evidence Subcommittee. Are you 

21 here, Dr. Cassano?

22 (No audible response.)
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1 MS. RHOADS: She was. We'll get back 

2 to her.

3 Okay, yes. And the Members are Dr. 

4 Leslie Boden --

5 DR. CASSANO: I'm here!

6 MS. RHOADS: Okay. That was Dr. 

7 Cassano.

8 DR. BODEN: That was not Dr. Leslie 

9 Boden.

10 MS. RHOADS: Okay, great. Ms. Faye 

11 Vlieger.

12 MS. VLIEGER: Yes, I'm here.

13 MS. RHOADS: Ms. Duronda Pope, who I 

14 think is not on the line yet.

15 Dr. Ken Silver.

16 (No audible response.)

17 MS. RHOADS: Okay.

18 MS. VLIEGER: Maybe he's mute.

19 MS. RHOADS: Maybe. And Dr. Rosemary 

20 Sokas is the chair of the IH and CMC Subcommittee.

21 DR. SOKAS: Here.

22 MS. RHOADS: And the members are, Ms. 
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1 Vlieger again; Mr. Kirk Domina, who I think is not 

2 on the call yet; Mr. Garry Whitley, who will not

3 be able to join us today; Mr. Mark Griffon; Dr. 

4 George Friedman-Jimenez; and Dr. Steven Markowitz, 

5 who is also the chair of the Board.

6 DR. MARKOWITZ: I'm here.

7 MS. RHOADS: Great.

8 We are scheduled to meet from 1:00 to 

9 2:30 p.m., Eastern Time.

10 In the room with me is Melissa Schroeder 

11 from SIDEM, our contractor.

12 Copies of all meeting materials and any 

13 written public comments are or will be available 

14 on the Board's website under the heading Meetings 

15 and the listing there for the subcommittee meeting.

16 The documents will also be up on the 

17 WebEx screen so everyone can follow along with the 

18 discussion.

19 The Board's website can be found at 

20 www.dol.gov/owcp/energy/regs/compliance/advisor

21 yboard.htm. After clicking on today's meeting 

22 date, you'll see a page dedicated entirely to 
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1 today's meeting. We will publish any materials 

2 that are provided to the subcommittee there. You 

3 should also find instructions for participating 

4 remotely there.

5 If you are participating remotely and 

6 you're having a problem, please email us at 

7 EnergyAdvisoryBoard@dol.gov. If you're joining 

8 by WebEx, please note this will be for viewing only. 

9 It will not be interactive.

10 Phones will also be muted for 

11 non-Advisory Board Members.

12 Please note that we do not have a 

13 scheduled public comment session today. The 

14 call-in information has been posted on the Board's 

15 website so the public can listen in but not 

16 participate in the subcommittee's discussions.

17 The Board voted at its April 2015 

18 meeting that subcommittee meetings should be open 

19 to the public. Full transcripts and minutes will 

20 be prepared from today's meeting.

21 During the discussion, people on a 

22 teleconference line, please speak clearly enough 
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1 for the transcriber to understand you. When you 

2 begin speaking especially at the start, please 

3 state your name so we can get an accurate record.

4 Can you please mute your phones because 

5 there is a call in the background we can hear? 

6 Thank you.

7 Also, I'd like to ask our transcriber 

8 to please let us know if you have trouble hearing

9 --

10 Can everybody mute their phones, 

11 please?

12 As DFO, I see the minutes were prepared 

13 and inserted as certified by the chair.

14 The minutes of today's meeting will be 

15 available on the Board's website no later than 90 

16 days from today, per FACA regulations. If it's 

17 available, the minutes will be published before the 

18 90th day.

19 Although formal minutes will be 

20 prepared, we will also be publishing verbatim

21 transcripts, which are more detailed in nature. 

22 They will be available on the Board's website 
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1 within 30 days.

2 I'd like to remind the Advisory Board 

3 Members -- materials that have been provided to you 

4 in your capacity as members of the Board, which are 

5 not for public disclosure and can't be shared 

6 publicly.

7 With that, I convene the meeting of the 

8 Advisory Board on Toxic Substances and Worker 

9 Health, Combined Subcommittee on Medical Advice 

10 Re: Weighing Medical Evidence and Subcommittee on 

11 IH and CMC and Their Reports.

12 I am going to turn it over to Dr. Sokas 

13 and Dr. Cassano. 

14 I will also ask the moderators to mute 

15 the line that is loud to everyone.

16 Go ahead, Dr. Sokas.

17 DR. SOKAS: Okay. So welcome, 

18 everybody. And I'm going to ask any of the 

19 committee members to jump in at any point on our 

20 discussions today. 

21 We have two agenda items. The first is 

22 a brief report on the meeting that took place among 
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1 some of the subcommittee members with the 

2 Department of Labor on July 11th. And the second 

3 item is really a preparation for the meeting in a 

4 month's time, the full Board meeting.

5 We did have a request to include some 

6 discussion of the DOL's response to the full 

7 Board's questions and we may be able to get into 

8 some of that.

9 But the other agenda item that was in 

10 preparation for the next full Board meeting was to 

11 determine whether we want to make a recommendation 

12 that our two subcommittees get merged, since the 

13 topics seem to overlap more and more at this point.

14 Any other comments or anything else to 

15 discuss about the agenda?

16 (No audible response.)

17 DR. SOKAS: And my fondest hope is that 

18 we finish within an hour but I'll see how it goes.

19 All right, I'm appreciative of the fact 

20 that the noises have all stopped. So I am grateful 

21 that people are all on mute. Please unmute when 

22 you want to make a comment.
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1 I'm going to do a very brief description 

2 of what happened and a little bit of follow-up from 

3 our subcommittee meeting on July 11th. Dr. 

4 Cassano and Dr. Silver each phoned into that 

5 meeting. I was local so I was able to actually go 

6 to the meeting in person. It was essentially a 

7 meet and greet for some of the members of our two 

8 subcommittees with Dr. Armstrong and Mr. Levitt.

9 Dr. Armstrong is the relatively new 

10 medical director for the program, who was recruited 

11 a little over the past year.

12 Mr. Levitt is the lead industrial 

13 hygienist for the group.

14 Also in attendance, Rachel Leiton, and 

15 Doug Pennington, and Carrie Rhoads, and John Vance. 

16 So there was a hefty representation of the program 

17 in the room. 

18 We had a generally useful discussion 

19 about the approach that Dr. Armstrong and Mr. 

20 Levitt take to the review of the CMCs and the 

21 industrial hygiene approach. I'll leave it to Dr. 

22 Cassano to discuss whether or not we really 
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1 approached the issue of weight of medical evidence.

2 One new piece of information that I 

3 would say was very important that came out of the 

4 meeting was a clarification that in fact Dr. 

5 Armstrong has been conducting some reviews of the 

6 CMC reports, which we were unaware of. We had 

7 previously asked several times to see about any 

8 such qualitative report -- I'm sorry, not 

9 qualitative but reports on the content, on the 

10 quality of the CMCs. We had previously been given 

11 access on several different occasions to a February 

12 2015 memorandum that was basically a review of the 

13 process, the pieces that were sent and the pieces 

14 that were returned to the claims examiners for the 

15 CMC and the IH reports. But we had never been given 

16 access to the actual evaluation of the content.

17 Now, and I think there may have been 

18 some misunderstanding when the full Board made the 

19 request, actually, at its previous meeting to have 

20 50 records reviewed for the quality and the content 

21 of the CMC reports.

22 So since that time, we've been notified 
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1 that that information, there are publicly 

2 available reports now on the website from Dr. 

3 Armstrong and from Mr. Vance.

4 Dr. Armstrong, basically, has a review 

5 that was conducted for the third quarter of 2016 

6 and for the fourth quarter of 2016, which are very 

7 condensed public versions that are on the website. 

8 Mr. Vance has reviewed Dr. Armstrong's 

9 evaluations and has submitted a somewhat more 

10 detailed report in May of 2017 that covered the 

11 results of the third quarter review and in August 

12 of 2017 that covered the fourth quarter of the 

13 review.

14 The reviews, themselves, are not 

15 completely available. Obviously, there is a 

16 certain amount of redaction. But there were a 

17 couple of areas where I think it would be useful 

18 to have the Board have access to the reviews as 

19 conducted and to the records as conducted. 

20 Basically, there were a couple of reviews where the 

21 language that was being criticized was -- I have 

22 it written down here someplace but I don't have it 
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1 in front of me -- not as likely as not, as opposed 

2 to not a relationship. And there were some 

3 determinations that were made that I think it might 

4 still be useful, if feasible, to have the Board 

5 members who had volunteered to do some of the review 

6 to actually take a look at the information and the 

7 reviews themselves. So I think that might be 

8 something we could propose at the next full Board 

9 meeting or for the next full Board meeting.

10 I'd like to open it up now, especially 

11 to Dr. Silver and Dr. Cassano for any other comments 

12 they might have, or Ms. Rhoads, on that particular 

13 meeting, since all of you participated.

14 DR. CASSANO: Yes, I think so much of 

15 it revolves around the issue of what the CMCs and 

16 what the IHs were doing that there wasn't much from 

17 my half of this world, other than a discussion of 

18 what information the IHs and the CMCs get in order 

19 to develop their opinions on exposure, et cetera.

20 And I think this has been sort of an 

21 ongoing theme between the program and the Board in 

22 that I think most of us, at least on our 
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1 subcommittee, are unclear about how the claims 

2 examiner with limited medical and/or industrial 

3 hygiene knowledge can actually extract all of the 

4 pertinent data, whether it's in the medical record 

5 or whether it's in the exposure history, especially 

6 when the occupational history questionnaire cannot 

7 be -- is not routinely sent, unless they have 

8 corroborated that information with either the SEM 

9 or some other information held by the agency that 

10 confirms what the claimant is saying in the 

11 occupational history questionnaire.

12 And I think this is going to be brought 

13 up again at the full Board meeting because it is 

14 one of our recommendations, which was not 

15 acceptable to the agency. And I think we're going 

16 to try to figure out some compromise where there 

17 is a possibility of either the IH or the CMC getting 

18 more information in order to make sure that they're 

19 not missing anything because the quality of their 

20 report is only as good as the information that they 

21 get.

22 And that's mostly what I have to say 
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1 about that meeting. Ken, you were also on my 

2 subcommittee or actually, you're on both, I think. 

3 If you have anything more to add to that, please 

4 go ahead.

5 DR. SILVER: Yes, I've been having 

6 connectivity issues so I didn't hear everything you 

7 just recapped, sorry.

8 I would say that Mr. Levitt's long field 

9 experience in industrial hygiene was impressive to 

10 me. 

11 I'm still a little disturbed that 

12 claims examiners are not incentivized to dig, and 

13 dig, and dig but think for themselves before the 

14 files get passed along to CMCs and others in the 

15 program Staff.

16 But I find it interesting that these 

17 audit documents first started showing up around the 

18 time that the Board was created. So it looks like 

19 we've had an impact just by coming into existence. 

20 Do they go further back in time than 2016, anyone?

21 DR. SOKAS: So, I don't know. That's 

22 a great question. As far as I know, this was 
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1 something that was put in place by Dr. Armstrong 

2 and he doesn't go back farther than that, I don't 

3 think. These are just the last two quarters of 

4 2016 that have been posted.

5 Ms. Rhoads, is that -- could we ask if 

6 there have been previous similar quality 

7 evaluations by previous medical directors, I guess 

8 would be the question?

9 MS. RHOADS: Yes, I will ask if they 

10 have anything previous to Dr. Armstrong.

11 DR. SOKAS: Thank you.

12 Any questions from any of the committee 

13 members about the meeting on July 11th?

14 (No audible response.)

15 DR. SOKAS: Okay, hearing none, I would 

16 like to get us right into the next part, which is 

17 really planning for the full board meeting.

18 So we should really come as -- I would 

19 like to have us, and really all of the people on 

20 the line, discuss the question of whether it makes 

21 sense to merge the two subcommittees.

22 And I don't know. Dr. Markowitz may 
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1 want to comment on that, since he's on both.

2 DR. MARKOWITZ: Sure, it's Steve 

3 Markowitz.

4 You know the terms of virtually 

5 everybody on the Board expire in February I think 

6 except for Fay Vlieger who I think gets until March. 

7 I guess during that month maybe she can conduct 

8 Board business.

9 But in any case, we don't know how much 

10 turnover there's going to be. We don't know 

11 whether people are going to reapply. We don't know 

12 whether -- I should add, by the way, that Department 

13 of Labor highly encourages current members to 

14 reapply to serve on the Board. And I --

15 DR. SOKAS: And it's due -- it's due in 

16 two days, right?

17 DR. MARKOWITZ: Right, due Wednesday. 

18 There is an electronic submission, right, Carrie?

19 MS. RHOADS: Yes, to the regular Board 

20 email that we usually use.

21 DR. MARKOWITZ: Right and it's a very 

22 similar package, virtually identical to the 
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1 package that you submitted two years' ago. No 

2 external nomination is needed. You can nominate 

3 yourself.

4 And so they, and I'm using the exact 

5 language, highly encourage, is the key word, us to 

6 reapply. And also I would encourage everybody to 

7 reapply. We you know learned a lot and we're still 

8 learning. You know, frankly, if you have a 

9 majority new Board, it will be a whole other travel 

10 up a steep learning curve. So that's potentially 

11 problematic.

12 But in any case, so the question in hand 

13 about merging the committees, I don't really know. 

14 We can do that, I guess. If the Board turns over 

15 significantly, then they sort of start over. And 

16 in that case, you know they'll be looking at their 

17 four tasks. The committees were structured 

18 according to the four tasks.

19 My only concern, I guess, if we merge 

20 things is that one or the other tasks may not get 

21 full attention that it's gotten in the past.

22 So I don't know. And it largely is 
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1 affected by the potential for change in the Board.

2 DR. SOKAS: Got it. So, again this is 

3 Rosie. You know I feel as if the IH and the CMC 

4 pieces have -- I'm not worried that they'll be 

5 submerged but I'll turn it over to Dr. Cassano to 

6 see if there are -- or to any of the people who serve 

7 particularly on both the subcommittees to see 

8 whether that would be problematic from anybody's 

9 perspective.

10 DR. CASSANO: I don't think so. This 

11 is Tori Cassano.

12 I don't think so because in order to 

13 really evaluate how well the claims examiner is 

14 doing, one has to be able to tie what the claims 

15 examiner is doing to the end product. And with 

16 just having the piece that I suppose we could share 

17 information between the two subcommittees but that 

18 gets sort of logistically onerous and I think 

19 knowing both ends of it so we can definitely see 

20 that okay, the industrial hygienist or the CMC had 

21 all the appropriate information and, in our minds, 

22 still came up with an inappropriate answer or we 
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1 can be able to say that yes, given the information 

2 the CMC had, this was the appropriate answer. And 

3 you can't separate out those two.

4 You know it's sort of like if your cake 

5 doesn't bake you've got to figure out what was wrong 

6 with the ingredients and then re-bake the cake.

7 DR. MARKOWITZ: Did everybody get that 

8 for the minutes?

9 DR. CASSANO: What?

10 DR. MARKOWITZ: Never mind.

11 DR. CASSANO: You want that for the 

12 minutes? Well you know, okay. You don't have to.

13 DR. SOKAS: I agree. I think it makes 

14 sense. It's very hard to look at these two pieces 

15 in isolation, in my experience, in my opinion. 

16 This is Rosie again.

17 Ken did you have anything you wanted to 

18 add or say?

19 MS. VLIEGER: This is Faye. I think it 

20 will be wise to merge them. I still think our 

21 considerations from the meeting where we discussed 

22 having someone with medical experience look at the 
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1 evidence before it's discounted is a wise thing. 

2 And I think by combining the committees, we'll be 

3 able to see the relevance of that.

4 DR. SOKAS: Good, okay.

5 DR. CASSANO: And I think while the 

6 committees may be combined, we can still track a 

7 path, i.e., if what we want to recommend is under 

8 the umbrella of weighing medical evidence but with 

9 the guidance for the claims examiner, we can still 

10 put that in the track, in that particular track or 

11 if it's guidance for the CMC but OIH would put it 

12 in that track.

13 So I think one subcommittee can do both, 

14 at which point we have more expertise among the two 

15 committees -- between the two committees than we 

16 do just with one, with separate committees.

17 DR. SOKAS: So I would think we don't 

18 need to really vote on this. I mean I think what 

19 we could do is raise it as an agenda item to be 

20 discussed at the full Board meeting because, 

21 essentially what we've kind of done is we voted with 

22 our feet a little bit by having our two 
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1 subcommittees meet together the last two times --

2 I mean this time and the previous time.

3 Again, I would like to kind of clarify 

4 this in that full Board meeting but either way, we 

5 still collaborate, whether it is formally joined 

6 or whether we continue to have joint meetings.

7 Now, I'd like to turn this question --

8 so unless there is any other conversation about 

9 this -- Ken, I don't know if you had any thoughts 

10 that you wanted to put on the record.

11 DR. SILVER: Yes, one more thing. If 

12 our idea for file review of 50 cases is adopted and 

13 the Department of Labor provides resources for a 

14 contractor to do it with some AOEC type, it would 

15 be much easier for them to report to one committee, 

16 rather than getting bounced back and forth between 

17 medical evidence and IH. 

18 So that's another reason for just one.

19 DR. SOKAS: Yes, that's an excellent 

20 point. And it also raises the question about that 

21 recommendation because we based it on some faulty 

22 input but I think that deserves to be discussed a 
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1 little bit more in the next section.

2 Les, you're also on the line. Did you 

3 have a comment or a thought?

4 DR. BODEN: No, except that I agree 

5 with what other people have said.

6 DR. SOKAS: Okay.

7 DR. BODEN: So consider my silence 

8 agreement.

9 DR. SOKAS: Okay, great. That's 

10 lovely.

11 And I think we've heard from everybody 

12 else who is on the phone right now. If anybody has 

13 joined who wasn't, who hasn't had a chance to weigh 

14 in, please let me know.

15 (No audible response.)

16 DR. SOKAS: Okay. So the next piece of 

17 preparation for the main meeting, I think Ken 

18 already got us started thinking about but do we have 

19 any particular responses to the recommendations?

20 And I know Steve has already been 

21 thinking about this. And I didn't know, Steve, if 

22 you want us to go through it or if you have some 
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1 particular thoughts you'd like to lead us off with.

2 DR. MARKOWITZ: No, I don't have any 

3 particular thoughts except that you know that my 

4 reading of some of the responses is there's clearly 

5 an indication to interact. I think there is, at 

6 least for some of them, there is at least an implied 

7 expectation of that we will react to their 

8 responses and so there will be some dialogue, 

9 rather than just instead of the final decisions 

10 handed down.

11 Other than that, I haven't.

12 DR. SOKAS: Okay, great. So with 

13 that, by way of background and Ken having raised 

14 the question about that one recommendation, I want 

15 to kind of go through and focus on recommendations 

16 that are quite specific to our two subcommittees 

17 because some of the other items won't be as -- you 

18 know might be more related to different 

19 subcommittees.

20 So unless I hear differently -- so shout 

21 it out if you disagree -- but I would suggest we 

22 not discuss Recommendation 1, which has already 
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1 been addressed. It is the 1995 guidance was being 

2 rescinded.

3 Recommendation 2, which is related to 

4 the SEM. Recommendation 3, about hiring former 

5 workers to administer the occupational health 

6 questionnaire, again, referring to what Steve just 

7 said, we are anticipating being in dialogue about 

8 that but I didn't know if anybody wanted to raise 

9 any particular comments about that now.

10 Now Recommendation 4, I think, Ken, 

11 this would be primarily for you to weigh in on. If 

12 you want to discuss it now or all of these, again, 

13 will be discussed at the full Board meeting, but 

14 this is the recommendation about allowing for more 

15 discussion between the IH and the claimant. And 

16 the response to that seems to be really focusing 

17 it back on the claims examiners. I didn't know. 

18 Is this something to discuss now or defer to the 

19 full meeting?

20 DR. SILVER: It's kind of the classic 

21 argument and you know if someone like John Dement 

22 is present, the argument gets a real boost in 
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1 credibility. The industrial hygienists learned a 

2 great deal from the affected individual.

3 I guess we'll just have to keep saying 

4 the same thing over and again in public forums and 

5 maybe there will be members of the public who have 

6 worked on claims who have a similar view.

7 But I have nothing brilliant to add at 

8 this stage.

9 DR. SOKAS: At this stage. Okay, 

10 thank you.

11 DR. MARKOWITZ: Rosie, this is Steve.

12 DR. SOKAS: Steve?

13 DR. MARKOWITZ: Yes. So my read on 

14 this is that there seems to be a desire by the 

15 Department to include the claims examiner as the 

16 central person in any collection of any additional 

17 information or at least to participate. And I 

18 think the key word here is coordinate any activity 

19 between the industrial hygienist and the claimant.

20 And I think that is probably a good 

21 thing because ultimately that information comes 

22 back to the claims examiner. So the more that the 
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1 claims examiner is involved, the less opportunity 

2 there is for miscommunication.

3 I don't read that it responds as a no. 

4 I don't read it as a complete yes but I read it as 

5 sort of a conditional yes. I mean, obviously, we 

6 want some clarification but that's -- looking at 

7 the response, I don't see any real alternative 

8 explanation.

9 DR. SOKAS: Okay.

10 DR. CASSANO: Well, this is Tori. I 

11 agree with Steve's interpretation of that. It is 

12 a little bit fuzzy as to what they exactly mean but 

13 if the meaning of the response is, gee, if the 

14 industrial hygienist is going to call the claimant, 

15 then it should be a three-way call with the claims 

16 examiner. If that was the intent of the response, 

17 I agree that's a good point.

18 DR. SOKAS: Okay, good. So the 

19 question moving forward then is a clarification of 

20 what that means.

21 DR. MARKOWITZ: Right.

22 DR. SOKAS: Okay. Any other comments 
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1 on that one?

2 (No audible response.)

3 DR. SOKAS: So moving on to 

4 Recommendation 5, this was around teleconference 

5 notes. And again, I probably am reading it more 

6 narrowly but it looks like this probably did not 

7 address some of the information that we thought was 

8 available from the pieces that we had reviewed. So 

9 that might be worth more of a conversation at the 

10 full Board meeting.

11 Any other comments on Recommendation 5? 

12 This was the teleconference note whether or not 

13 there was generalizable information that is useful 

14 for others to know about and to make available in 

15 a redacted form.

16 DR. MARKOWITZ: This is Steve. I just 

17 have one comment. I realize that members of the 

18 public may be on the phone and they may not be 

19 accessing what we're talking about but it is 

20 available on the Board's website. You just have 

21 to go the Board meeting from October 17 to 19, 2016. 

22 And if you can find that, the meeting from a year 
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1 ago, there is available under available meeting 

2 items. And anyway, you eventually make your way 

3 to the available -- under recommendations, under 

4 the available meeting items is the link to the 

5 responses and you can find what we're talking 

6 about.

7 DR. SOKAS: That's right. It's a 

8 September 19, 2017 communication to Dr. Markowitz.

9 Thank you. Thanks, Steve.

10 Okay, I'm going to -- yes?

11 DR. BODEN: Okay, this is Les. I think 

12 I understand where they are coming from on this one. 

13 And this is the sort of a kind of a less intense 

14 version of executive privilege, where they want to 

15 feel free to discuss policy issues in an open way 

16 that might not -- it might not feel comfortable 

17 making public. And I do think that we have to think 

18 about that side of things in this. That is, they 

19 do need a place where they can sort of you know 

20 brainstorm ideas and not be ridiculed because these 

21 things become public or something like that.

22 DR. SOKAS: Okay, that's helpful. 
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1 Thank you.

2 Now in the next response, 

3 Recommendation 6 and 8 are pooled together and this 

4 was about making files accessible.

5 And so the file is being made accessible 

6 to the claimant, as soon as the technology allows. 

7 And that was a positive response.

8 There was a second recommendation that 

9 the industrial hygienist and contract medical 

10 consultants would also have access to the full 

11 files and not simply to the specific information 

12 being forwarded with the questions by the claimant, 

13 claims examiner. And that, again, in my 

14 interpretation seems to be not approved. And so 

15 that seems to be a negative response.

16 I think Tori's comments in the 

17 beginning addressed somewhat that it is 

18 challenging to think of how the claims examiner 

19 will know exactly which piece of medical 

20 information is the appropriate piece to forward and 

21 that sort of thing.

22 So I think we do have some questions 
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1 about that that we would plan to raise at the full 

2 Board meeting.

3 DR. CASSANO: Yes, Tori again.

4 I owe Steve a response to their response 

5 that I said I would get to him. And since I can 

6 now type, I will be getting that out within the next 

7 couple of days to Dr. Markowitz so we have that.

8 I don't know whether we're going to 

9 discuss those responses to the full Board -- I don't 

10 know whether those responses are going to go in 

11 before the full Board meeting or whether we're 

12 going to discuss them at the full Board meeting. 

13 I don't know how that's going to work. And maybe 

14 Steve, Dr. Markowitz, you could let us know how 

15 that's going to happen.

16 DR. MARKOWITZ: Yes, we're going to 

17 discuss them at the full Board meeting. I mean we 

18 haven't had an opportunity as a full Board to 

19 discuss them. So, that's what we'll do.

20 DR. CASSANO: Okay. Okay, so before 

21 any responses go in, we're going to discuss them 

22 as a full Board. Okay.
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1 DR. SOKAS: And I don't know if anyone 

2 else on the call has a comment about that.

3 DR. MARKOWITZ: This is Steven. This 

4 actually really goes to the heart of our task about 

5 weighing medical evidence because I think you know 

6 in our recommendations I think we expressed some 

7 maybe skepticism or maybe just some questioning 

8 about whether the claims examiner was capable of 

9 and was in fact sorting through the information 

10 correctly and passing along the correct 

11 information to the IH and the CMCs.

12 And so you said why not just send them 

13 all along and let the CMC and the IH sort it out. 

14 And clearly, that realigns the functions in the 

15 program in the claims examining process and in a 

16 very important way. I think that's what I read the 

17 response to be.

18 So actually, if our empirical question 

19 is are the claims examiners doing as well in terms 

20 of identifying the appropriate information or the 

21 doctors for the industrial hygienist. And you 

22 know our recommendation to look at 50 claims, I 
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1 think it was CMCs, actually, we could conceivably 

2 expand that and look at not just the performance 

3 of the CMC but look at what information was passed 

4 along to the CMC or the IH by the CE. In other 

5 words, develop some data as to whether this is a 

6 real problem or not. Because I don't see, in the 

7 absence of data here that we're going to be 

8 persuasive or even that we quite know the facts, 

9 actually.

10 DR. CASSANO: And Steve, Tori Cassano, 

11 again. Again, one of my subcommittees or my 

12 partial subcommittees will be discussing the trip 

13 to Seattle, which did elucidate a little bit how 

14 well the claims examiners are doing their job, 

15 albeit it is a small number of records that were 

16 picked by the different district offices.

17 So as I said, it's really hard to know, 

18 number one if the process is working as well as it 

19 could and, number two, if it is not working as well 

20 as it could, where's the weak link? And you just 

21 don't know that unless you see the whole claims 

22 folder, see what the claims examiner sends to the 
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1 IH and to the CMC, and then to the end product and 

2 be able to dissect gee was anything really missing 

3 or did the industrial hygienist or CMC not use the 

4 information they got properly. You just don't 

5 know until you see the whole thing.

6 DR. SOKAS: All right. Any other 

7 comments on those recommendations for now?

8 And I did realize that what Ken was 

9 discussing and what we had previously recommended 

10 from our subcommittee about the need to do a content 

11 review of the CMC reports was not one of the 

12 recommendations that had gone out in October. It 

13 didn't go out until I believe it was the April 

14 meeting.

15 So we don't have a response on that one 

16 but we will need to review that recommendation and 

17 discuss it at the next meeting because given the 

18 fact that we do have some information available 

19 from the medical director reports, we may want to 

20 look at and maybe tweak a little bit the language 

21 in that.

22 I think we're still going to be 
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1 requesting a review, along the lines of what Tori 

2 and Steve have both been describing, having all of 

3 the information together.

4 We have had full medical records at some 

5 point and letters that have gone out to the 

6 claimants but not necessarily in the same package 

7 as letters that go to the CMC or the IHs. So that 

8 would be helpful.

9 DR. MARKOWITZ: This is Steven. While 

10 we're discussing this, the idea of our 

11 recommendation for us to look at, maybe through a 

12 contractor, a sizeable number of CMC reports and 

13 the latest files, you know looking at Dr. 

14 Armstrong's review for those two quarterly 

15 reviews, for those two quarters, I think we should 

16 give some thought about recommending looking at 

17 larger than a number of 50 claims. Some of the 

18 errors that Armstrong identified were less 

19 frequent. And I think that we need a larger number 

20 to really understand how important they are.

21 So we don't need to settle that now, but 

22 I just wanted to throw that in.
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1 DR. SOKAS: Right. Okay, that's a 

2 good point.

3 Any other comments on what we -- either 

4 the response to these eight recommendations or 

5 anything else we, as the subcommittees need to be 

6 preparing for the Board meeting at large next time?

7 DR. CASSANO: Oh, did we just -- we 

8 didn't discuss 7. I don't know if it was germane 

9 to either of our committees but --

10 DR. SOKAS: Yes, I think it probably --

11 yes, I'm sorry. So 7 was a recommendation for 

12 reorganization of the Department, which would be 

13 nice but you know I don't know that we'll have a 

14 chance to really make much difference on that. But 

15 if anybody else has different thoughts --

16 DR. CASSANO: I do have one -- I don't 

17 know whether it would be a request or a 

18 recommendation. Probably a request.

19 I think a lot of us feel a little bit 

20 frustrated when we have recommendations that go in 

21 to the next full Board meeting and taking ourselves 

22 away from a regular job and we don't have a response 
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1 back from the Agency about the recommendations that 

2 we submitted from the prior full Board meeting.

3 And it makes it very inefficient for us 

4 to move forward and it makes it very difficult to 

5 make further recommendations if you don't know what 

6 has been accepted or rejected from the prior 

7 recommendations from six months previously.

8 So I would like to make a request to the 

9 program that responses to recommendations be 

10 available to be made to the Board at least 30 days 

11 before the next full Board meeting, if not sooner.

12 DR. BODEN: And I think we could add to 

13 something like that a little you know sort of 

14 generous note that says that we understand that 

15 during the presidential transition sometimes it's 

16 hard to make decisions but now that everybody's 

17 onboard, ha-ha, we think that should be something 

18 that could --

19 DR. SOKAS: Yes.

20 DR. MARKOWITZ: Well, you know -- it's 

21 Steven. It really relates to whether we can be 

22 effective. 
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1 By way of example, we issued some 

2 recommendations regarding presumptions and it was 

3 mostly low-hanging fruit. So you know it would be 

4 nice to know before we plow ahead with some 

5 additional more challenging issues in relation to 

6 presumptions whether that approach is helpful or 

7 not.

8 DR. BODEN: Right, especially since 

9 the Board only has full Board meetings a few times 

10 a year.

11 DR. SOKAS: So that's a request to the 

12 program, Carrie?

13 DR. BODEN: Well, you know we should 

14 raise it at the full Board meeting -- you know three 

15 weeks or whatever.

16 MS. VLIEGER: This is Faye. I know we 

17 discussed the Circular 1505 on asbestos and that 

18 we didn't believe that that one should go forward 

19 either. It was another post-1995 circular about 

20 presumption of exposure.

21 I just want to point out that the 

22 Department of Labor incorporated that into the new 
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1 procedure manual. And so even though we were in 

2 discussions about it and told them we didn't like 

3 it, they went ahead and did that anyway.

4 I think we should discuss that at the 

5 next meeting.

6 DR. CASSANO: So they rescinded the 

7 circular but put it in the procedure manual?

8 MS. VLIEGER: They rescinded the 

9 circular on chemical exposure not asbestos 

10 exposure.

11 DR. SOKAS: And that recommendation 

12 didn't go in until the subsequent Board meeting, 

13 right?

14 MS. VLIEGER: I'd have to look at the 

15 time line on it but they did not rescind the 

16 circular on asbestos exposure 1505. They 

17 rescinded the one on post-1995 hearing loss, 1506.

18 DR. MARKOWITZ: So you know, Carrie, 

19 maybe since we're going to discuss this at the Board 

20 meeting in New Mexico, maybe whoever attends from 

21 DOL can be prepared to discuss what the chronology 

22 and the thinking is on this issue.
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1 MS. RHOADS: Yes, I'll pass that on to 

2 them.

3 DR. MARKOWITZ: And Faye, if you could 

4 just send me a two-line email requesting that be 

5 on the agenda. Otherwise, I'll forget.

6 MS. VLIEGER: No problem. It's 

7 weaning its way to you.

8 DR. MARKOWITZ: Okay.

9 DR. SOKAS: All right, any other 

10 comments, discussion, topics?

11 DR. MARKOWITZ: Yes, this is Steven. 

12 So I've got a question.

13 We have these two audits by Dr. 

14 Armstrong and then we have Mr. Vance's it looks like 

15 decisions or recommendations to Rachel about the 

16 Armstrong's observations.

17 And by the way, Carrie, those are 

18 available to the public, right?

19 MS. RHOADS: Yes, those are posted in 

20 the reading room. I sent a link out to the members 

21 of the subcommittee but I could resend it around.

22 DR. MARKOWITZ: Okay. So are they on 
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1 the Board's website or where would the public, or 

2 for that matter, members of the Board exactly find 

3 these?

4 MS. RHOADS: Yes, they are on the 

5 program's website in the reading room, their public 

6 reading room.

7 DR. MARKOWITZ: Okay, so the EEOICP 

8 website, right, public reading room.

9 MS. RHOADS: Right. You know what, I 

10 can direct them so that the links on the Board site 

11 gp to that site as well.

12 DR. MARKOWITZ: Okay, so here is a 

13 question. Are we going to discuss the substance 

14 of both Dr. Armstrong and Mr. Vance's memoranda at 

15 the full Board meeting?

16 DR. SOKAS: Yes, so --

17 DR. MARKOWITZ: I think we should, but 

18 go ahead.

19 DR. SOKAS: Okay. I mean that's fine. 

20 I mean it's really follow-up to the July 11th 

21 meeting. We could put that in to a discussion.

22 I mean what it does is I think when we 
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1 need to discuss it, the way I was looking at having 

2 that conversation was re-examining our Board 

3 recommendation about the subcontracting to review 

4 the quality of the information going forward and 

5 the quality of the information coming back.

6 And to have some portion of what was 

7 done through these -- through Mr. Vance and through 

8 Dr. Armstrong to be available to the Board in 

9 unredacted you know kind of the case files be 

10 available and to have kind of a second opinion on 

11 sort of a quality assessment of the quality 

12 assessment, rather than come out with --

13 I mean is that what you had in mind, 

14 Steve, or did you have something else in mind?

15 DR. MARKOWITZ: No, I actually meant 

16 just sort of Step 1, which is Dr. Armstrong went 

17 through -- I'm looking at this 42 randomly selected 

18 CMC reports that were a subset of the third quarter 

19 2016. He clips it to his memo February 8, 2017. 

20 And of those 42, you know he talks about what number 

21 and percentage were problematic and then discusses 

22 why they were, the ones that were problematic what 
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1 the problems were.

2 And then Mr. Vance, in a follow-up memo 

3 of May 18, 2017, he actually goes through them one 

4 by one and discusses Dr. Armstrong's observation 

5 and his own examination of the claim and makes, I 

6 think, the recommendations to Rachel -- I'm not 

7 sure but in any case, about the particular claim 

8 what ought to be done with it.

9 So these are very interesting and, 

10 clearly, this goes to the heart of a quality review 

11 and correction of claims. And I think we ought to 

12 take advantage of this work and discuss it.

13 Now, I don't --

14 DR. SOKAS: So --

15 DR. MARKOWITZ: One last thing, Rosie, 

16 I need to say.

17 We can request that the full Board 

18 members take a look at these things, read these 

19 things before the Board and they may or may not. 

20 But committee members can and lead a 

21 discussion -- present the results and lead a 

22 discussion about these things.
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1 Okay, that's all I have to say.

2 DR. SOKAS: Right. I mean I think 

3 there are several comments that you can -- that 

4 could be made based on what you've described. I 

5 think it might be important to have the actual chart 

6 to review before kind of a full set of comments 

7 would be useful.

8 And I don't know if I'm -- you know I 

9 could be persuaded one way or the other on this. 

10 I don't know if anybody else has had a chance to 

11 peak at those.

12 So I'm not saying that you know kind of 

13 definitively. Just I have thought that it might 

14 be useful to actually take the case back to being 

15 described by one and then the other and take a look 

16 at it in full before trying to do that comparison.

17 I mean there are some aspects of the 

18 process that might be able to be discussed in public 

19 before then. So we could do it that way.

20 DR. MARKOWITZ: Yes, it's in part, a 

21 timing issue -- have we submitted a request to see 

22 the full files de-identified? I can't remember.
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1 DR. SOKAS: No we have not.

2 DR. MARKOWITZ: Okay but even if we 

3 had, it would take a while to get. And then we're 

4 into next year and I just think at whatever level 

5 we can discuss these reports and memos, I think we 

6 should learn from them what we can and realize that 

7 we're looking at a secondary analysis, not the 

8 primary data ourselves but still gain from them.

9 DR. SOKAS: Sure, okay. I mean and 

10 Tori, I am happy to defer to you. I'm happy to do 

11 that. I think it should come out of our joint 

12 committee effort, basically.

13 DR. CASSANO: I agree, Rosie. I think 

14 we need a better look at things and try to 

15 incorporate the agency's perspective on what we 

16 intend -- you know how we intend to review these.

17 But again, without seeing a full file, 

18 you don't know what comments are correct. You also 

19 need to not just look at the ones where Dr. 

20 Armstrong found problems but you need to look at 

21 the ones where there apparently were no problems 

22 found, too.
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1 So you really do need a rather robust 

2 review to accomplish all this.

3 DR. SOKAS: Yes, okay.

4 DR. SILVER: And if we're going to 

5 proceed with the idea of a more expansive review 

6 of case files from the primary data, we have to 

7 distinguish it from what we have now, which is 

8 audits and already an audit of the audits.

9 (Simultaneous speaking.)

10 DR. SILVER: -- propose something 

11 above and beyond that.

12 DR. CASSANO: Well one of the things we 

13 might ask, and I think I've said this before is in 

14 order to enable us to do this, is to request that 

15 some of us, whether it is the industrial hygienist 

16 -- a couple of the industrial hygienists or the 

17 physicians actually have access to the OIS system, 

18 which is the imaging system they use and that's how 

19 the claims examiners go through the file. And it's 

20 very well-indexed and it's very easy to find stuff. 

21 And it would make a lot of sense for us to be able 

22 to use that system, rather than using a PDF, which 
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1 is arduous at best.

2 DR. SOKAS: Right.

3 DR. CASSANO: So I don't know if 

4 there's a possibility of getting access. I think 

5 the issue -- we've asked for this before and the 

6 issue was well once they get us access, we can go 

7 anywhere. We are physicians and we are industrial 

8 hygienists and the part that we have access to, we 

9 only go where we're supposed to go. We don't go 

10 looking up our friends and other people that we have 

11 no right to look at. That's just part of the 

12 ethical construct of both of our professions.

13 DR. SOKAS: Well and I would just like 

14 to sort of suggest that -- this is Rosie again --

15 that if what we're talking about is having 

16 subcontractors follow a specific set of guidelines 

17 for reviewing this issue, rather than having Board 

18 members do it, then if the subcontractors are paid, 

19 maybe they can just struggle with the PDFs the way 

20 we've done in the past.

21 So I mean I don't think we have to solve 

22 this all ourselves is what I'm suggesting because 
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1 we've all kind of wrestled with these at different 

2 points.

3 So, Tori and I, I am going to propose, 

4 will work together to do kind of a joint 

5 presentation for the next Board meeting that 

6 includes a review of these audits but in the context 

7 of what we recommended in the past and what we think 

8 we might want to modify, given what we know now.

9 DR. CASSANO: That sounds good.

10 DR. MARKOWITZ: When you look at these 

11 reports or if you remember having looked at them, 

12 I'm talking about Dr. Armstrong's summary, one 

13 thing I couldn't find -- if you find it let me know 

14 -- is I couldn't find where they looked at the 

15 qualifications of the CMC.

16 DR. SOKAS: Oh, there's one report 

17 where he comments specifically on the 

18 qualification of one of the CMCs not being an 

19 oncologist but being an internal medicine 

20 specialist and they had requested an oncologist.

21 But he does -- so I don't know. I mean 

22 we could sort of have this whole conversation now 
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1 but I think it's probably best to discuss it at the 

2 full Board meeting.

3 DR. MARKOWITZ: Sure.

4 MS. VLIEGER: This is Faye. In 

5 reviewing those audit reports, there were a number 

6 of findings that were duplicates, particularly in 

7 the use of the word significant, which we discussed 

8 before but I don't think the Department of Labor 

9 took to heart.

10 And then when we're reviewing the 

11 comments of an audit, we don't have any idea what 

12 the training basis was for the people doing these 

13 because the Department of Labor has not let us see 

14 that because they consider it proprietary.

15 So when you're looking at an audit and 

16 you're wondering what standard the people were 

17 operating to without knowing the standard, it's 

18 very hard to understand the conclusions.

19 So once again, I think we ought to be 

20 able to see what standard CMCs are trained to.

21 DR. CASSANO: Well, Tori Cassano. I 

22 think you know how the contractor does their 
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1 business is one thing. But the RFP should be very 

2 specific as far as how they are supposed to carry 

3 out their function. And it should, in the RFP, say 

4 that.

5 I don't know whether any of us looked 

6 at the RFP or the actual contract language but 

7 contract language is not proprietary.

8 MS. VLIEGER: The contract is not 

9 specific to the --

10 DR. CASSANO: But it's an RFP and the 

11 only thing that's proprietary, as far as I 

12 understand it, is how much they're paying for it.

13 MS. VLIEGER: The training manual for 

14 CMCs has not been released by the Department of 

15 Labor, it's not on the public site. And the 

16 contract itself, which I have looked at a couple 

17 of the different contracts through the years, are 

18 very vague. And so no, the contract is not 

19 specific.

20 DR. CASSANO: Interesting.

21 DR. SOKAS: But I think the CVs of the 

22 examining physicians are available to the -- so 
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1 anyway, I think we should go through this and look 

2 at it because I think they do get the CVs. They 

3 know if somebody is boarded in something or 

4 something else.

5 And that could be -- so I agree with Faye 

6 that what we probably ought to be doing when we make 

7 this next recommendation is maybe even setting up 

8 the template for what the quality review might 

9 include. And if there already is a template --

10 actually this is a great question for Carrie to 

11 maybe supply for the next Board meeting.

12 But the question would be is there a 

13 template that's used for the medical review of the 

14 quality of the CMCs either by Dr. Armstrong or by 

15 Mr. Vance.

16 So if they have a template that is 

17 publicly available that could be shared, that would 

18 be useful information. But otherwise, it may well 

19 be something that the Board might want to do to say 

20 well, these are the things that are useful to check 

21 and maybe create that template.

22 DR. CASSANO: That's a great idea, 
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1 Rosie, that we create it. 

2 If they approve the use of the 

3 subcontractors, then I think yes, we should work 

4 on the template and make sure that they're looking 

5 at the things that we consider important when doing 

6 those reviews.

7 DR. SOKAS: Okay, great.

8 DR. MARKOWITZ: So, this is Steven. 

9 They have circulated those templates. And Carrie, 

10 if you could, because this stuff is hard to find, 

11 if you can just make a point of sending those 

12 around, that would be helpful.

13 MS. RHOADS: Okay.

14 DR. SOKAS: All right, any other 

15 topics? Any other comments?

16 DR. CASSANO: I'm good.

17 DR. SOKAS: All right. Excellent. 

18 Hearing none, I would like to turn it over to Carrie 

19 to close out the meeting.

20 MS. RHOADS: Okay, great. There isn't 

21 any procedure we need to go through.

22 So, thanks, everybody for joining the 
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1 call today and we'll see you in November.

2 (Whereupon, the above-entitled matter 

3 went off the record at 2:09 p.m.)

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