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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MAY 10-11, 2022

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The Advisory Board met via videoconference, Steven 

Markowitz, Chair, presiding.

MEMBERS

SCIENTIFIC COMMUNITY

AARON BOWMAN

MARK CATLIN

KENNETH SILVER

MIKE VAN DYKE

MEDICAL COMMUNITY

GEORGE FRIEDMAN-JIMENEZ

ROSE GOLDMAN

STEVEN MARKOWITZ, Chair

MAREK MIKULSKI

CLAIMANT COMMUNITY

JIM KEY

DURONDA POPE

CALIN TEBAY

DIANNE WHITTEN

DESIGNATED FEDERAL OFFICIAL

MICHAEL CHANCE
MONDAY, MAY 10, 2022

Welcome/Introductions

Michael Chance called the meeting to order at 1:05 p.m. The 

meeting was conducted via videoconference in light of the COVID19 pandemic. Mr. Chance reminded Board members that certain

materials they received in their capacity as special government 

employees should not be disseminated or discussed publicly. The 

Advisory Board is currently seeking nominees for its next round. 

DFO Chance encouraged current board members and others 

interested in serving to submit their nominations. The Board is 

interested in promoting a diverse pool of applicants. Chair 

Steven Markowitz welcomed Advisory Board members, Department of 

Labor (DOL) staff, and members of the public. He noted that the 

Board's term ends in approximately two months and suggested that 

if there is any outstanding work that the Board wants to get to 

before the end of the term, an additional short Board Meeting 

may be considered to address those issues. Chair Markowitz 

called for introductions and briefly reviewed the meeting 

agenda.

DEEOIC Updates: Program Highlights, Information Items since last 

meeting

Rachel Pond, Director, Division of Energy Employees Occupational 

Illness Compensation (DEEOIC), discussed recent changes geared 

toward making DEEOIC's quality review process more rigorous. 

Supervisory claims examiners are now reviewing more cases each 

month, and there is a quality review unit in the national office 

comprised of analysts who review cases on an ongoing basis in 

real time. This is a departure from the prior practice of 

holding an annual accountability review conducted by district 

office staff across the country. The ongoing reviews inform 

DEEOIC on how it can move forward in improving its processes and 

the quality of written decisions. In Q1 and Q2 of FY22, the 

Energy program's timeliness and quality results have been 

outstanding overall, exceeding in almost every category. 

Currently DEEOIC is working to develop a mechanism for digital 

signatures on EE-1 and EE-2 forms, which would allow applicants 

to complete their applications for benefits online, in hopes of 

easing the burden for claimants in obtaining benefits. DEEOIC 

has also developed a robust customer experience program over the 

last year. Surveys are now sent up at various stages of the 

claims adjudication process. 
Beginning in June, DEEOIC will return to its in-person outreach

model, with visits scheduled to Aiken, North Carolina, and the 

Navajo regions of New Mexico and Arizona. At those meetings, 

DEEOIC will reach out to tribal governments and groups to share 

information in partnership with other government agencies such 

as the VA, Department of Energy and Department of Justice. 

DEEOIC is also looking to translate its brochures and items on 

its website into Spanish to be as inclusive as possible in its 

communications. Recently DEEOIC created an employee engagement 

team. Since the pandemic, DEEOIC is 100 percent remote, so all 

of the employees are spread across the country. They are working 

on new ways to interact with each other with open lines of 

communications, with frequent virtual meetings and 

correspondence on Microsoft Teams. Overall, the biggest focus 

has been customer experience outreach. 

John Vance, Chief, Branch of Policy, Regulations and Procedures, 

DEEOIC, discussed recent policy updates. The procedures are 

designed for providing staff guidance and how employees are to 

do their day-to-day job in administering established legal and 

regulatory guidance. Many procedures are updated based on staff 

experiences and operational updates. DEEOIC has recently 

published several bulletins and circulars regarding allowances 

for telemedicine. They continue to extend guidance relating to 

telemedicine opportunities for home and residential healthcare, 

which was covered in Bulletin 2201. 

Mr. Vance highlighted a major update to the Procedure Manual

since the last meeting in November. Version 6.0 of the Procedure 

Manual was released on April 4, 2022, and it is available on 

their website, along with a transmittal outlining allof the 

changes that were incorporated into the new edition. Historic

language has been removed relating to the function of handling 

paper case files, as DEEOIC now works with a completely imaged 

case file system virtually. There have also been some updates 

primarily centered on the new functionality of the Medical 

Benefits Adjudication Unit and their role in administering 

medical benefits. Staff guidance was clarified with regard to 

handling and assessing Authorized Representative appointments. A 

new operational instruction was instituted with regard to the 

conflict of interest policy. While the underlying conflict of 

interest policy was not changed, the process for administering 

it was clarified in greater detail. There was also input 

regarding the site exposure matrices (SEM). The language has 

been changed to make sure that some searches are only necessary 

to be documented in the case file in situations where it is 

relevant as opposed to mandating it for every claim scenario. A 
new organizational process was mapped out for how to handle 

scenarios pertaining to withdrawn impairment claims. There was 

also an update relating to coordination on state worker comp 

situations. There is a new resource that ensures individuals 

that are eligible to receive benefits are paid. The system 

checks payees against a Do Not Pay Portal, a tool operated by 

the Department of Treasury to ensure that payments are only 

disbursed to living individuals who are not prohibited from 

receiving payment. Other language was updated to remove 

references to paper checks, as DEEOIC has moved to a completely 

electronic funds transfer process. Paper checks are only allowed 

in very limited circumstances. 

Mr. Vance also highlighted that the current edition of the 

program's forms expired on March 31, 2022. The new public forms 

have to undergo an intensive clearance process. OMB is 

responsible for conducting those approvals. If new forms are not 

released on time, the prior forms are extended indefinitely on a 

monthly basis. The currently listed forms are being extended 

until the new information collection is cleared by the OMB. 

Chair Markowitz asked for an explanation on the 2021 Quality 

Summary Report that was included in the briefing book. Ms. Pond 

explained that it was part of an ongoing sampling review of 

quality. The report summarizes the QA team reports as well as 

the sampling conducted by the district offices. It is a way to 

track the results of quality reviews over the course of the 

year. 

Chair Markowitz also asked whether there was discussion about 

making trichloroethylene (TCE) into a presumption for 

Parkinson's disorders. Mr. Vance recalled that Marek Mikulski 

gave a very descriptive analysis of that issue, and the context 

was making sure that the SEM was properly identifying toxins 

with Parkinsonism or Parkinson's disease. 

Discussion of Written Follow-up to November 2021 meeting

Chair Markowitz reviewed prior Board questions and the 

Department’s responses. The first question was whether the 

program gets any feedback in terms of use of electronic claim 

files by claimants. The response from the Department was that 

there has not been much feedback. Chair Markowitz asked if there 

is a feedback mechanism that might be useful as a way of 

improving file access for people. Mr. Vance said that there are 

efforts to expand functionality. With regard to feedback, the 

Department would have to figure out a mechanism for determining 
its utility. Ms. Pond added that DEEOIC has been doing some 

research to determine how many people have been accessing their 

case files on the system. She said that once it is made 

available to Authorized Representatives, there will be more use 

because they are probably accustomed to using electronic methods 

for gathering information. These questions will also be asked 

during the upcoming in-person outreach sessions.

Duronda Pope asked when the customer experience meetings are 

taking place and how interactive they are. Ms. Pond confirmed 

that the outreach meetings will be happening throughout June, 

and the specific details are published on their website. There 

will be a general presentation about the program, and then the 

other various agencies will talk about their involvement. After 

that, there will be group sessions with the customer experience 

individuals that participants can sign up for. 

The next item related to the IARC Group 2A carcinogens. The 

Board had previously recommended that the limited list of 

carcinogens for which there was some evidence of human 

epidemiologic causation, or association with exposure, should be 

included. The Board asked for clarification on multiple items, 

specifically on the pesticides Aldrin and Dieldrin. There is 

evidence that one of them causes human breast cancer. The 

Department accepted the Board's recommendation that the link in 

the SEM should include breast cancer in both males and females 

for both Aldrin and Dieldrin. 

Another item had to do with evidence that styrene can cause

lymphoma. The question was which lymphomas to add to the SEM and 

linking it to styrene. The Board's recommendation was to include 

all of the lymphomas, of which there are now 70 subtypes. The 

Department has added all lymphomas to the list relating to 

styrene exposure, and the category is lymphomahematopoietic 

malignancies. 

Rose Goldman said that for some of the carcinogens that were 

Group 1 and other categories in the Procedure Manual, there were 

specifications for how many months or years you had to be 

exposed and how long ago. She asked if there is some guidance 

about the next steps in terms of seeing if it was an adequate 

exposure or fit into some criteria that was not put forth. Mr. 

Vance clarified that what the change to the SEM is doing is 

providing claims examiners with information that can be assessed 

as they are going through the adjudication steps. When a claims 

examiner gets a claim where covered employment has been 

established and the individual has been diagnosed with one of 
the lymphoma types, they will then begin doing an industrial 

hygiene profiling effort. They try to identify work that brought 

them into contact with one of the toxic substances. If they can 

affirmatively conclude that exposure occurred based on a 

comparative analysis, the next stage would be to have an 

industrial hygienist (IH) provide a more detailed profile of 

that exposure. That information is then provided to the 

claimant's physician or a contract medical specialist. They then 

weigh in on whether the exposure was a significant factor in 

causing, contributing to or aggravating an illness. That is 

different from the presumptive standard, which allows the 

Department to say they are accepting the case if these 

conditions are satisfied. 

The next question that the Board raised was regarding the 

current status of the SEM contractor, Paragon, on three 

categories of job titles that they wanted to see added to the 

presumptive list for asbestos exposure, to include chemical 

engineers, mechanical engineers, and industrial health and 

safety engineers. In response, Paragon recommended a research 

project on mesothelioma death certificates from the National

Occupational Mortality Survey to link specific job titles to 

asbestos exposure to determine relevance for the Department of 

Energy. The Board responded that it was unnecessary to look at 

death certificates. On certain job titles, the Board agreed with 

Paragon that there were too few deaths in the system to include 

them on the list. For example, with jobs where there were 10 or 

fewer mesothelioma deaths in the National Occupational Mortality 

System, there is not enough information to proceed. On the other 

hand, for chemical engineers, mechanical engineers, and

industrial safety engineers, there were 30 or more deaths and 

they had a relative risk of over 2.5-fold of mesothelioma 

compared to the general population. 

The Board said that perhaps these engineers' titles are not 

being included appropriately because they had bystander exposure 

rather than direct exposure. The question was raised whether 

bystander exposure was actually recognized by the compensation 

system. Paragon responded that the SEM "does recognize bystander 

exposure when documentation such as industrial hygiene sampling 

demonstrates that potential asbestos exposure exists." The Board 

thought there was sufficient evidence that chemical engineers, 

mechanical engineers, and industrial health and safety engineers 

had asbestos exposure as a presumption that they should be 

included under the Asbestos Presumption List in the Procedure 

Manual. As of yet, the Department has not responded to the Board 

recommendation on this issue. Mr. Vance indicated that he spoke 
with the Paragon contract manager about this topic. It is not a 

determination that Paragon is going to make; Paragon is being 

asked to look at information and provide some sort of rationale 

or justification for adding those to the program's procedural 

specifications for the presumption. Mr. Vance suggested the 

Board should take a look at Paragon's response and provide more 

input as to what the generalization should be and on what 

rationale it applies.

The Board requested the program's written guidelines or 

instructions on how claims examiners or IHs can perform detailed 

telephone interviews on the occupational health of claimants. 

The Board made this recommendation several years ago, and it was 

adopted by the program as a way of gathering data on frequency, 

intensity and nature of claimants' exposures. The IHs can 

request that an interview be done. That request goes to the 

program office, and the federal IH weighs that request. If it is 

decided that an interview would be useful, it is coordinated 

with the claims examiner. The claims examiner summarizes the 

interview in writing and sends it off to the contract industrial 

hygienist who then uses it in their evaluation. Mr. Vance added 

that he periodically asks the industrial hygiene team about this 

issue. They collect much more robust industrial hygiene 

information now as a result of the updated Occupational History 

Questionnaire process that the Board recommended. A lot of IHs 

feel that the amount of detailed information that is now coming 

in up front is mitigating the need to conduct these interviews. 

Chair Markowitz asked why the interviews are not being conducted 

by the contractor IH who is actually going to be writing up the 

report and making the most important determinations about the 

significance of the exposure. Ms. Pond responded that there are 

strict contracting rules that require the federal IH to conduct 

the interview. Chair Markowitz suggested changing the contract 

next time it comes around in order to enable this option. 

The Board also asked for clarification on the role of the 

medical director in the program. The Procedure Manual mostly 

refers to the medical director in relation to weighing in on 

experimental medication issues or on transplants, and not on the 

issue of impairments. 

The Board also inquired about whether or not they could 

communicate with public commenters in instances when they do not 

understand the comments being provided. Mr. Chance checked the 

FACA rules and determined that during the public comment period, 

the Board would not get into frank discussions back and forth 
with public commenters, but if the commenter makes a particular 

point that the Board does not understand, the Board can ask for 

clarification on that point. 

The last issue relates to the history of the program. At one 

point the National Cancer Institute assisted the program in 

interpreting certain cancer types and the extent to which they 

were included in certain generic categories of cancer. 

Subsequently that was reversed by the EEOICP program, where the 

NCI assistance was not solicited. Mr. Vance said there was a 

legal issue that came up about reliance on NCI to determine 

certain anatomical definitions. Now the program relies more on 

the physician interpretation of the anatomical designation of 

cancers. 

Review of Claims

Claim -6199 (last 4 disits of claim ID number)

The claim was a cancer/leukemia case reviewed by Aaron Bowman 

and Ms. Pope. The case was denied under Parts B and E. The 

denial was in part based on an inability to verify employment. 

Dr. Bowman focused mostly on the Part E element. Some parts of 

employment were able to be verified, while others were not --

specifically truck driver and pipefitter. There was discussion 

of insufficient IH evidence for exposure to benzene. For the 

jobs that were verified, the SEM search did not give a link to 

exposures relevant to any of the jobs listed, including those 

that were not able to be verified. When employment was not able 

to be verified, they used Social Security records of employment, 

and from there they were not able to make certain matches that 

were part of the claim. Based on the totality of the evidence, 

Dr. Bowman concluded that the final decision was justified. Ms. 

Pope opined that in some of the cases, claimants were not 

adequately represented. Ms. Pope said that the claimant needed 

an attorney or an advocate to help him build, navigate, and 

defend the claim. Chair Markowitz added that the claimant 

reported multiple job titles at Savannah River -- construction 

worker, truck driver, pipefitter, and electrician. The claims 

examiner filled out an exposure worksheet citing the pipefitting 

and electrician work. However, the claims examiner only asked 

the IH about the truck driver position, and the IH did not find 

much exposure to anything that would cause leukemia. 

-0106
The claim was a chronic lung disease and COPD/asthma case 

reviewed by Mark Catlin and Dianne Whitten. It was filed by a 

worker who was listed as a laborer working for a contractor at 

both Hanford and Pacific Northwest Medical Lab. The claim was 

denied. It was initially for COPD, asthma and bronchitis as the 

diagnosed illnesses. Mr. Catlin said the employment history 

provided by the claimant was not very detailed. The Department 

put together some of the employment history using radiation 

badge records. There was a lack of records from the contractor. 

Mr. Catlin said it seemed like the claimant could have found 

better information with some assistance to document their 

history. The claimant also did not provide much supporting 

medical documentation or evidence. Mr. Catlin was interested in 

the SEM and the exposure history. The claim was referred to an 

IH; however, there was no evidence the hygienist talked to the 

claimant. Mr. Catlin said he would have focused on the silica 

dust exposure. He said he would rather see more transparency 

about the IH interpretation. Ms. Whitten indicated that the

claimant was unresponsive when more information was requested 

about their exposures and job classifications. Chair Markowitz 

said that he agreed with the negative causation conclusion. 

-0219

The claim was a cancer/myelocytic leukemia case reviewed by 

George Friedman-Jimenez and Calin Tebay. According to the IH, 

the claimant worked as a field engineer and project field 

engineer. The exposures of concern were benzene and 1,3-

butadiene, both of which have been definitively implicated in 

leukemia carcinogenesis. Dr. Friedman-Jimenez looked at a number 

of problems in this case. The job titles that were listed, field 

engineer and project field engineer, were only some of the jobs 

that the claimant did. In different parts of the record, it 

mentions general manager, surveillance maintenance utility 

manager, project or program manager, and technical operations 

manager. The claimant also worked in deactivation and 

decommissioning, which involves a variety of different 

exposures. In the SEM, deactivation and decommissioning lists 

both benzene and 1,3-butadiene as potential exposures in the 

Hanford site where he was working. The question that the claims 

examiner posed to the IH did mention most of the employment 

information, but the IH report said that there is "no evidence 

of significant exposure to benzene, formaldehyde or 1,3-

butadiene." However, they did not consider four out of the six 

job titles. According to Dr. Friedman-Jimenez, the IH ignored 

the titles that had more potential hands-on exposure to at least 

two of the three toxic substances. The IH mentioned that there 

were odors associated with benzene and butadiene, but it did not 
account for the masking of odors that often occurs when there is 

a highly complex mixture of vapors. Dr. Friedman-Jimenez 

concluded that oversights in the IH report substantially reduced 

the credibility of the exposure assessment. Additionally, Dr. 

Friedman-Jimenez recommended having clerical staff organize and 

index the medical records in such a way that the physicians, IH, 

CMC and claims examiners have an easier time finding what they 

need from thousands of pages of documents. Mr. Tebay added that 

there were no IH records located in the DAR, which set the pace 

for the whole claim adjudication. The claimant does have 

multiple job categories for roles and responsibilities that were 

not applied in the SEM. Mr. Tebay said that the look in the SEM 

based only on job category did not provide much feedback in his

favor, which ultimately weakened the claim. Chair Markowitz said 

that he would like it if the IH stated what records the IH 

examined to ensure that all of the relevant items were reviewed.

-4418

The claim was a three-part emphysema case, reviewed by Dr. 

Mikulski and Mike Van Dyke. There was a subsequent impairment 

rating and a claim for home health care. All three were 

accepted. The claimant was a 77-year-old former worker from Los 

Alamos. He worked as a mechanical technician for almost five and 

a half years, with exposures of concern to asbestos cement, 

diesel exhaust, silicon dioxide crystalline, welding fumes, wood 

dust, and endotoxin. The primary claim was accepted in March 

2020. The treating physician's opinion said it was at least as 

likely as not that the exposure to asbestos during claimant's 

employment contributed to their emphysema. According to Dr. 

Mikulski, this is a well-based impairment with proper 

application of AMA guidance for impairment rating. The claimant 

will be eligible for another impairment re-evaluation and, based 

on their results -- which were submitted together with the home 

healthcare claim -- there may be another impairment finding. Dr. 

Van Dyke said that this case is a good example of where the SEM 

worked. The SEM listed the substances that he was exposed to and 

the report indicated that he was subject to moderate levels of 

exposure. 

-7255

The claim was a cancer case, reviewed by Ms. Whitten and Rose 

Goldman. The claimant had kidney cancer. They were exposed to 

radiation and trichloroethylene (TCE). There was an IH report 

that says there was "mild exposure for a year and a half." The 

CMC referred back to a German article that said you had to have 

many years of exposure at high dose. In light of that, the CMC 

dismissed the claim. The recent IARC update on TCE broadened 
mechanistic and other factors. TCE is a Group 1 known 

carcinogen. According to Dr. Goldman, since there is no specific 

reconstruction process, it becomes a judgment call. Ms. Whitten 

added that if the IH would have dug deeper in the file, they 

would have seen that this company has used over 2,000 gallons of 

TCE annually with no PPE. Char Markowitz pointed out that there 

is a presumption in the Procedure Manual for kidney cancer and 

TCE, but the claimant would need five or more consecutive years 

of exposure prior to 1990 at one of a large number of listed DOE 

sites. This claimant was not qualified for a presumption because 

they did not have five years of exposure. 

Public Comment

Bob Rothe voiced his personal objection to the endless denial of 

his bilateral sensorineural hearing loss claim. Dr. Rothe worked 

as an experimental nuclear physicist at Rocky Flats from 1964 to 

1994 and during that time was exposed to toxic chemicals. 

According to Dr. Rothe, two doctors have concluded that it is as 

likely as not that this exposure has caused or contributed to 

his hearing loss. Dr. Rothe contends that compensation should be 

provided under the provisions of EEOICPA. Dr. Rothe claims that 

he was denied because of his job title that he held at 

retirement, associate research scientist. Denver District Office 

recommended denial, and DOL in Washington also denied Dr. 

Rothe's claim. In all cases, the denial was because the job 

title did not fit DOL's list of Hearing loss-associated job 

titles. Dr. Rothe argues that the list is incomplete. The job 

title that was used for denial is not the job title Dr. Rothe 

held when he was exposed. Dr. Rothe contends that this is 

obviously true because of the FBI raid of Rocky Flats in 1989, 

which terminated all operations until the closure of the plant 

several years later. 

Sandra Thornton pointed out several problems in her brother-inlaw's case. She cited three doctor's letters and 3,400 pages 

worth of evidence. 25 claims have been filed; all have either 

been denied or never processed. Some have been sitting for over 

23 months. One is currently in reconsideration. Ms. Thornton 

argued that DEEOIC is not giving a higher precedent to doctors 

who are familiar with the employee and the evidence. Ms. 

Thornton's brother-in-law has had over 120 toxic exposures, with 

over 16 links to occupational illnesses due to exposures at the 

Paducah Gaseous Diffusion Plant. The DEEOIC computer system does 

not allow claimants to check the status of claims, nor does it 

allow for communication with case managers to establish a trail 

of information for continuity. 
Terrie Barrie, Alliance of Nuclear Worker Advocacy Groups, said 

that she was made aware in March by an Authorized Representative 

that new language has been added to IH reports. She raised 

concerns about the new language, contending that it is 

misleading and inaccurate. Ms. Barrie researched DOE's 

acceptance of the ACGIH threshold limits and found two 

references. The first is a survey that DOE provided to the 

Savannah River site, dated April 15, 2015. The second DOE 

document is titled Adopting the 2016 ACGIH TLV - Respirable 

Crystalline Silica (orau.org). Ms. Barrie expressed that she has 

serious doubts about DEEOIC's sincerity when they say how much 

they appreciate the Board's work, as they did not notify the 

Board about the changes until after they were complete.

Jason Jones, an attorney who represents a number of clients 

under the DEEOIC program, addressed similar concerns that Ms. 

Barrie raised regarding the wording of the IH reports. Mr. Jones 

said that his concern is twofold. The wording steps outside of 

the bounds of what the DEEOIC policy manual directs IHs to 

provide in their opinion. "The IH's role is to provide expert 

opinion regarding an employee's exposure as it relates to 

nature, frequency and duration based on assessment of the 

evidence presented." The IH report should not be providing a 

medical opinion on causation. Secondly, it does not provide any 

of the information that an IH is supposed to supply to 

physicians. It provides no estimate of duration, frequency, or 

the duration of exposure. The second take on the wording is that 

it is either a causation opinion, or the IH wording is requiring 

a physician to accept that (1) ACGIH standards were in place at 

the facility in question for that claimant, and (2) that these 

standards were inherently safe. Mr. Jones suggested that if 

ACGIH is referenced, the wording should be taken out that it's 

inherently safe and that there are no adverse health effects. 

The IH report should provide some evidence that the ACGIH 

standards were actually in place at the time, along with a 

statement of what the actual TLB/TWA values are, since they are 

more difficult to look up than OSHA standards.

Tyler Bailey, an Authorized Representative, said that the DEEOIC 

does a great job in general, although there are some things to 

improve on. Mr. Bailey said that the misuse of Contract Medical 

Consultants (CMCs) by claims examiners creates significant 

problems in the adjudication of cases. When a primary illness is 

adjudicated by the program, the Procedure Manual states that 

claims examiners should view the treating physician as a primary 

source of medical evidence before consideration of a CMC 
referral. Mr. Bailey said that sometimes claims examiners will 

use a CMC inappropriately and without justification. This occurs 

regularly with Mr. Bailey's clients, and once it happens, the 

case is corrupted as a whole. Some claims examiners, 

supervisors, and district offices exhibit a pattern of sending 

claims to the CMC in direct violation of the Procedure Manual. 

Once the CMC's opinion is issued, it is viewed as being of equal 

or more probative value than the original treating physician's 

input regardless of content or rationale. Written objections 

generally result in the case being sent to a referee specialist; 

however, the referees are simply another CMC that tends to side 

with the original CMC. 

Faye Vlieger, a former Board Member, saluted the dedication of 

those who submitted a request to continue their positions on the 

Board. Ms. Vlieger focused her comments on continued false 

statements and assumptions regarding toxic exposures at DOE 

sites, and the "post mid-1990s" toxic exposure policy guidance. 

Ms. Vlieger contends that since the issuance of EEOICP Circular 

15-06 in 2014, a fallacy of safety and absence of toxic 

exposures has pervaded the EEOICP leadership and claims

processing guidance. DOL rescinded Circular 15-06, but its 

language still appeared in the Procedure Manual, referral 

documents to CMCs, IHs, and claims decision documents. She added 

that it is apparent that EEOICP is still clinging to the 

erroneous idea that workers have been safe at DOE sites after 

September 30, 1995 just because DOE said so. To date EEOICP has 

not provided the basis documents which informed their opinion 

concerning "post mid-1990s" exposure criteria. Ms. Vlieger 

suggested that EEOICP should remove the "post mid-1990s" 

language and create a toxic exposure presumption that states: 

"Records of adequate toxic exposure monitoring are unavailable 

for EEOICP workers."

Elizabeth Brooks, an Authorized Representative, addressed the 

topic of chronic silicosis claims under Part B of the EEOICPA 

and the need for revision of the Procedure Manual. Many of Ms. 

Brooks' clients have been diagnosed with chronic silicosis due 

to the prevalence of silicon dioxide (crystalline) at DOE 

facilities located in Nevada. Ms. Brooks requested that the 

Advisory Board undertake discussions to review information on 

the atomic tests and experiments that have persisted at the 

Nevada Test Site in Yucca Mountain and recommend to DEEOIC that 

the Procedure Manual be reverted back to what it was prior to 

Version 3.1, so that claims for chronic silicosis under Part B 

may be adjudicated in a manner consistent with the criteria 

originally established by congressional law under the EEOICPA. 
Josh Artzer, an NCO of 23 years at the Hanford Site, talked 

about the evolving diagnosis criteria for beryllium-related 

diseases and conditions. The BeLPT for years was based on an 

abnormal or negative test result. For quite some time now, the 

term "borderline" is being used to diagnose beryllium 

sensitization. The EEOICPA Procedure Manual does not include the 

term "borderline," and it seems CEs will not accept borderlines 

as an acceptable diagnosis for beryllium sensitization. 

Currently DOE, OSHA, National Jewish Hospital and Washington 

State Labor and Industriesall recognize the borderline BeLPT in 

diagnosing beryllium sensitization. To date, most if not all 

EEOICPA claims Mr. Artzer is familiar with involving borderline 

BeLPTs are denied. Mr. Artzer hopes that the Board will consider 

and provide the DOL with a recommendation to modify the current 

diagnosis criteria to accept borderline BeLPTs. Many workers at 

Hanford are stuck in this gray area. These individuals will not 

receive the medical surveillance options they deserve until this 

issue has been resolved. 

Melissa Herron, an electrician employed at the Hanford Site, 

identified herself as one of these gray area employees. She has 

five borderline tests. She has been diagnosed as sensitized by 

both the Cleveland Clinic and local medical providers. Ms. 

Herron said she is being treated just like her co-workers who 

have their positive BeLPT. She is no longer able to work in a 

beryllium area and is thus deprived of overtime hours based on 

her positive borderline BeLPT tests. Ms. Herron asked the Board 

to make a recommendation to the DOL that borderline criteria can 

be accepted. 

Marieca Sharp, a 38-year employee at Hanford and co-chair of the 

Beryllium Awareness Group, was diagnosed as beryllium 

sensitized. She worked in a beryllium zone daily for two years. 

Ms. Sharp sees a lot of people in the group with borderlines, 

and they are having the same issues that everyone else has. It 

has a lot to do with the person's immunity and how their body is 

going to react to these substances. Ms. Sharp noted that the 

Board is focusing a lot on workers' job titles, and she 

recommended focusing more on an employee's job tasks. Ms. Sharp 

also suggested including the borderlines in the criteria. 

Dale Fish, a teamster at the Hanford site since 2009, is also 

beryllium sensitized. He said that everybody knows there is no 

beryllium out at Hanford, but they still get cases every month. 

This is a real problem at Hanford, and Mr. Fish said he wishes 

that the DOL would take care of the people who have three 
borderlines. 

Aaron Burt, a Hanford worker for 13 years, said that he wants

to see a change in the diagnosis criteria. A lot of people are 

falling through the cracks, and Mr. Burt is one of them. Mr. 

Burt had three borderlines, and he was diagnosed with chronic 

beryllium disease by the leading hospital in the nation for 

respiratory. He fought for two years with DOL to get a claim, 

which was ultimately denied. 

Roger Torrie, a heavy equipment mechanic at Hanford for the last 

16 years, said he hopes the three borderlines would get a 

positive BeLPT so that they can create an accurate program for 

the workers at Hanford. 

Aaron Keck, a Hanford worker of 10 years, is an affected 

beryllium worker diagnosed with three borderline BeLPT’s. His 

diagnosis is recognized by Washington State, Department of 

Energy, and leading medical facilities. Mr. Keck said it only 

seems reasonable for the diagnosis criteria to change to follow 

along with the others. 

Toni Winborg, a lab technician who worked at the Hanford Site 

for 38 years, said that most of the time she was working, there 

was no industrial hygiene program in place. She documented 

exposure to beryllium in 2007, and has worked in many buildings 

and areas that are now or were listed as beryllium facilities. 

In 2012, Ms. Winborg received three borderline BeLPT results.

She went to National Jewish Hospital in 2015 and was officially 

diagnosed as being beryllium sensitized with three borderlines, 

even though DOL does not acknowledge that in an EEOICP claim. 

Ms. Winborg recommended that DOE diagnosis criteria for 

beryllium sensitization needs to be updated to include the 

following: two abnormal BeLPT results, an abnormal or a 

borderline result, or three borderline BeLPT results.

Stephanie Carroll, an Authorized Representative who specializes 

in chronic beryllium disease, said that 90 percent of her claims 

are approved with negative beryllium tests for chronic beryllium 

disease under Part B. Ms. Carroll said that borderlines are 

evidence of a lymphocytic response to beryllium. When a BeLPT is 

billed to the DOL, it is actually billed as six tests. Each 

result the worker gets is the result of six tests that were done 

on different days. The University of Pennsylvania has noted that 

the BeLPTs have a virtually impossible chance of showing 

positive unless the patient has been exposed to beryllium. Ms. 

Carroll also said that she has documentation of a DOL library 
that supports allof the SEMs that she plans to provide.

TUESDAY, MAY 11, 2022

Call to Order:

Mr. Chance called the second day of the meeting to order at 1:05

p.m. Chair Markowitz called the roll. 

Board Request for Resources:

Mr. Chance gave the update. The Department did some market 

research and gathered information from vendors who are 

interested in doing the work. Chair Markowitz and Board Members 

have been working to flesh out the proper expertise and to cost 

it out on an hourly basis for the respective job types. Chair 

Markowitz confirmed that he has finished his review of the 

Statement of Work. Multiple comments were submitted and 

accepted, and there is a final performance work statement. The 

next step is departmental clearance. Chair Markowitz asked for a 

time table. Mr. Chance said they cannot commit to anything at 

the moment. 

Continue Review of Claims:

Chair Markowitz briefly reviewed the Board's charter and 

reminded Board Members what they need to pay attention to as a 

Board. He pointed to item number two of the Medical Guidance for 

claims examiners for claims under Subtitles B and E of the Act, 

with respect to the weighing of the medical evidence of 

claimants. Chair Markowitz also highlighted the fourth task, the 

work of the IHs, staff physicians and consulting physicians of 

the Department, and the reports of such hygienists and 

physicians to ensure quality, objectivity, and consistency. 

Finally, he pointed to the next task, which is that it is within 

the Board's scope to examine and weigh in on the claims 

adjudication generally, including review of Procedure Manual 

changes.

-2157

This case was a beryllium claim reviewed by Dr. Van Dyke and 

Kenneth Silver. It was based on two claims, one from 2018 for 

beryllium sensitization, and the other from 2019 for CBD. The 

claimant worked for 45 years at a beryllium contracting facility 

that was covered by DOE. Dr. Van Dyke said that from an exposure 

standpoint, this was a fairly easy case because his exposure was 

substantiated by a letter from the facility saying that he was 
exposed to airborne beryllium during the course of his work. 

According to the Procedure Manual, if an individual works for 

more than one day in one of these covered facilities, they are 

thereby covered for their beryllium claim. The claimant was 

referred to a physician in 1990 for an abnormal chest x-ray. He 

was worked up for the potential of beryllium disease in 1990, 

including a CT, biopsy, a beryllium blood LPT and a BAL LPT. In 

1991, he was diagnosed with sarcoidosis on the basis of a 

negative blood LPT and BAL LPT. He did have evidence of 

granulomas on biopsy, which is a hallmark of sarcoidosis and 

chronic beryllium disease. The case went cold until 2018 when 

this claim was filed subsequent to an abnormal blood LPT. In 

2018, the claimant filed for beryllium sensitization on the 

basis of the abnormal LPT. The claimant was awarded beryllium 

sensitization, and subsequently he filed for CBD benefits under 

Part B. This was substantiated based on the medical information 

from 1990. Dr. Van Dyke said that the only thing standing in the 

claimant's way of a CBD diagnosis was evidence of beryllium 

sensitivity, which was found in 2018. Dr. Silver noted that the 

claimant's Authorized Representative was from the human 

resources department of the company that had the contract to do 

beryllium for the Government. While there is no evidence that 

the Authorized Representative took any money, it goes to show 

how thoroughly institutionalized the benefit program has become 

throughout the DOE and its subcontractor complex. Regarding 

sarcoidosis, Chair Markowitz highlighted a quote on page 178 of 

the Procedure Manual: "Under Part B, the DEEOIC recognizes that 

a diagnosis of pulmonary sarcoidosis, especially in cases with 

pre-1993 diagnosis dates, could represent a misdiagnosis for 

CBD. As such, a diagnosis of pulmonary sarcoidosis is not 

medically appropriate under Part B if there is a documented 

history of beryllium exposure.”

-9787

This case was a Parkinson's claim reviewed by Dr. Van Dyke and 

Dr. Goldman. The claimant had exposure to potassium 

permanganate, and was referred for both IH and the expert 

medical examiner. The patient initially presented with a resting 

tremor, which put him more in the category of idiopathic 

Parkinson's disease rather than manganese. There was a gap of 18 

years from the last significant exposure and symptom onset, 

which made it less likely. There was an IH review which 

indicated that his only exposure was potassium permanganate, and 

in the SEM that is listed as associated with Parkinson's because 

of the manganese. Dr. Goldman tried to look up whether potassium 

permanganate could cause Parkinson's, but she was not able to 

find a definite answer. She concluded that this was a reasonable 
review, including the IH and the qualified CMC who gave a very 

cogent analysis and reasoning why this claim was denied. Dr. Van 

Dyke agreed that it was a well thought out case. He concluded 

that the main reason the claim was denied was based on the CMC 

review saying that they did not believe that this particular 

Parkinson's was related to chemical exposure. In terms of the 

IH, the individual was employed for more than 30 years and was 

exposed to many different chemicals in their line of work. There 

was not a lot of documentation, but Dr. Van Dyke felt that they 

zeroed in on potassium permanganate because it appears on the 

SEM list of things that could be associated with Parkinson's. 

Dr. Van Dyke pointed to imprecision of the language in the IH 

reviews, specifically with regard to the use of words like 

"significant," "regulatory level," or "high, medium, and low." 

These terms often mean different things to different people. He 

suggested there is definitely work that could be done to make 

the language more precise by clearly defining the words that are 

used. 

-0014

This case was a cancer claim reviewed by Chair Markowitz and Jim

Key. Chair Markowitz said it is a straightforward case of a 

person in their 60s who worked at a Southern DOE facility. She 

developed lung cancer and thyroid cancer. Her job title for five 

years was administrative assistant, along with another closely 

related title. Her work was all clearly administrative. The 

claim was denied on both lung cancer and thyroid cancer. It was 

judged that the claimant did not have sufficient exposure to 

produce a cancer. They zeroed in on possible asbestos exposure. 

Chair Markowitz agreed with the conclusion that there was not 

sufficient evidence to demonstrate that she had enough exposure. 

In the Occupational Health Questionnaire (OHQ), the claimant 

identified that she used to handle contaminated records. Chair 

Markowitz opined that this is why she submitted the claim, but 

he did not see that issue addressed in the IH report. He also 

said he did not see any listing of what the IH reviewed. 

Nevertheless, both Chair Markowitz and Mr. Key agreed with the 

findings. 

-7016

This case was a chronic lung disease claim reviewed by Dr. Van 

Dyke and Chair Markowitz. Dr. Van Dyke said that this was a 

harder case with respect to exposure than some of the other 

cases under review. The claimant submitted a pulmonary fibrosis 

claim that was denied. The individual was a lab tech for many 

years at a facility. When they talk about their exposure, they 

talk about exposure to lots of different things -- metals, 
plastics, epoxies, urethanes, silicone, solvents, and silica. 

The focus of the IH report was on asbestos, aluminum, carbon 

graphite, kaolin, silica, and titanium dioxide. Throughout the 

assessment, the IH confirmed exposure to these chemicals at low 

or very low levels. With a confirmed exposure to toxin that is

associated with this outcome, most of the case hinges on the 

denial by the CMC. The physician said it does not look like 

asbestosis. The CT scan is not consistent with heart metal 

disease. Exposures are not high enough for any kind of pulmonary 

fibrosis due to carbon exposure. In the end, the CMC sais that 

it does not look like silicosis either. Dr. Van Dyke said that 

he thinks the claim hinges on the opinion of the physician that 

it does not look like any of the diseases that would be 

associated with the particular exposures that they delved into. 

Dr. Van Dyke also noted that there were a lot of exposures that 

were not explored much, such as epoxy resins; however, they are 

not on the list of positive agents for pulmonary fibrosis. Chair 

Markowitz said that on the medical end, the CMC decided it was 

not asbestosis. Chair Markowitz agreed that it's unlikely to be 

asbestosis, but he disagreed with the physician's logic. The CMC 

read the findings on the CT scan as representing pneumonitis, 

but those findings overlap with asbestos of the lung tissue 

itself. Chair Markowitz also said that the likelihood of a lab 

technician having sufficient asbestos exposure to cause 

asbestosis islow. 

-7716 and -2560

Case -7716 was a chronic lung disease claim reviewed by Dr. 

Goldman and Dr. Silver. Dr. Goldman contrasted this case with 

another similar claim, -2560, which she reviewed with Dr. 

Catlin. In -7716, the claimant already had a claim accepted for 

pneumoconiosis. It was up to the CMC to give an impairment 

rating. In both cases, they used the AMA guide's definitions of 

lower limit of abnormality. In the report, the CMC pays 

attention to the claimant's report of breathlessness. The CMC 

looked at the whole picture, and did not limit himself to 

restrictive lung disease. In -2560, the individual has pleural 

plaques. Again, the CMC is asked to assess pulmonary impairment 

due to pleural plaques. The CMC uses the same process, but for -

2560 the CMC organized the approach to whether or not only the 

abnormalities suggestive of restrictive lung disease are

present. Because there was no evidence of restrictive lung 

disease at all, the CMC ignored the findings of restrictive lung 

disease and gave the person zero level of impairment. Dr. Silver 

added that the claimant in -7716 also had squamous cell 

carcinoma of the lip. The SEM found arsenic at the uranium mills 

because it was a component of the ore. On Case -2560, Dr. Catlin 
added that the claimant -- a long-term roofer and sheet metal 

worker -- was also denied a claim for basal cell carcinoma. Dr. 

Catlin said it stuck out that a decision was made regarding the 

carcinoma on his nose. It was determined that because it was on 

his nose, it could not have been work related or else it would 

have had to be on his hands. Dr. Catlin said that in his 

experience, roofers can have exposures in all uncovered spots of 

the body. 

Common Language in IH Reports:

Jeff Kotsch, manager of the medical health sciences unit at 

DEEOIC, led the discussion. The Board recently submitted 

questions to the program, and there was a rapid turnaround on 

responses. The first question regarded the fact that many IH 

reports indicate that existing regulatory standards have not 

been exceeded in particular claims. Chair Markowitz asked which 

regulatory limits are being cited in these reports. Mr. Kotsch 

responded that the Department of Energy has not historically 

adhered to OSHA PELs but has followed the lower ACGIH threshold 

limit in almost all cases. There is a discussion in the indices 

document about what defines the TLV/TWA. In essence, the DOL 

applied the most restrictive standard using the best information 

available on DOE's worker occupations. Each was looked at on a 

case-by-case basis since there are different sites around the 

complex. Mr. Vance said that OSHA standards are still relevant 

and referenced from time to time, but from a safety and health 

perspective most of the sites are striving to adhere to the 

stricter standards outlined by the ACGIH. 

Chair Markowitz said that in 1995, DOE promulgated Rule 440.1. 

He asked which DOE rule determined what standards were followed 

prior to 1995. Mr. Vance said he would check and get back to the 

Board on that question. Mr. Kotsch added that one of the 

concerns is that around 1995, there was a much more stringent 

effort to improve the occupational safety and health monitoring 

of employees. There will always be arguments about whether DOE 

complied with or enforced those standards. There are instances 

where someone can be exposed to a toxin within the ACGIH 

threshold, which a physician could look at and still opine that 

the exposure was a significant contributing factor to a disease. 

It is left to the judgment of the physician and the working 

knowledge they have in reaching that type of conclusion.

Chair Markowitz asked how IHs deal with changing TLVs in the 

interim periods as they look at claims that go back a long time. 

Mr. Kotsch said that they are basically applying their knowledge 
of what the current limits are, which are more restrictive than 

they were in the past. 

Mr. Catlin said that while it is necessary to choose some system 

of comparison for the exposure limits, the ACGIH has 

consistently talked about the TLVs as levels that will protect 

nearly all workers. Back in the '90s, there was a lot of 

controversy within the profession and the medical community when 

OSHA tried to update their PELs using ACGIH. The "protecting 

nearly all workers" language was not well defined; it could mean 

75 percent or it could mean 95 percent. 

Dr. Goldman highlighted that when OSHA first came in, their 

standards were stricter than ACGIH. There was a lot of concern 

that the professionals in ACGIH were consulting with industry. 

Over time, OSHA, because of all of the contention surrounding 

their standards, has lagged behind tremendously -- a glaring 

example being lead. As a result, other professional 

organizations including ACGIH have proceeded to update their 

standards.

Chair Markowitz moved on to the next question: what constitutes 

the various types of evidence that demonstrate that regulatory 

limits have been exceeded. In general, there are two types of 

standards. There is a short term ceiling limit that might be 

exceeded for 15 or 30 minutes, and then there's the standard 

that applies to a full eight hour day. In occupational medicine, 

the focus is mostly on chronic exposure as opposed to the shortterm limit. Mr. Vance said that generally there will be some 

incident or event that occurs that brings the employer into the 

work environment to do some sort of sampling or monitoring. That 

information would drive the IH's understanding as to whether or 

not there was a viable exposure beyond what was allowable in the 

particular scenario. 

Chair Markowitz asked if no evidence concerning workplace 

exposure is available in either direction above or below 

regulatory limits for a given claim, whether the conclusion 

usually drawn that regulatory limits have not been exceeded. 

Chair Markowitz's question was whether it is factually more 

accurate to conclude that we do not have available data to 

determine whether levels were above or below regulatory limits. 

Chair Markowitz thanked Mr. Vance and Mr. Kotsch for their 

straightforward answers to the questions. The Board took a short 

break at 2:57 p.m. and returned at 3:14 p.m. 
Continue Review of Claims:

-2282

This case was a chronic lung disease claim reviewed by Mr. Key 

and Dr. Friedman-Jimenez. Dr. Friedman-Jimenez said he agreed

with the decision overall. The claimant worked for six months, 

got COPD, and is a smoker. The exposure considered was asbestos 

exposure. He likely had some. He was an electrician who was 

tearing out some ventilation ducts for part of those six months. 

The asbestos standard is reasonably protective for COPD and 

asbestosis. The claimant's brief exposure period and the very 

likely lack of violation of the OSHA or ACGIH standard for 

asbestos made the likelihood of his being exposed at a 

sufficient level to cause COPD very low. Dr. Friedman-Jimenez 

had no criticism of the case, other than that the IH report 

should have discussed the work activity of disassembling HVAC 

ducts. However, the exposure was likely to be so brief and 

fairly low, and unlikely to have been the cause of claimant's 

COPD. 

-2347

This case was a chronic lung disease claim reviewed by Ms. Pope 

and Mr. Tebay. Mr. Tebay said that although he probably agrees 

with the outcome of this case, there was a lack of diagnosis. 

For the claimed condition, although there was a second condition 

for chronic lung disease, the individual had identified specific 

exposures that may have occurred during their employment. The 

SEM search did not agree with all of the exposures listed, but 

it did identify some additional exposures. Mr. Tebay indicated 

that there was confusing communication from the IH on certain 

language such as "incidental," "significant" and "low." Mr. 

Tebay said that he does agree that the CMC's report is very 

detailed, and that both the CMC and the IH did their jobs. Ms. 

Pope agreed with Mr. Tebay. She said there is some conflicting 

information. There was not enough evidence to support or develop 

the claim. Mr. Tebay and Ms. Pope agreed that the IH got it 

wrong. 

-6463

This case was a chronic lung disease claim reviewed by Ms. 

Whitten and Dr. Bowman. The claimant was in her 70s. She went in 

for a physical and it was determined that she had chronic lung 

disease, and she was steered toward the program and filed a 
claim. The IH, because of her smoking and exposure to asbestos, 

decided that she was accepted under COPD. Ms. Whitten found it 

remarkable that the IH took into consideration the claimant's 

smoking and low level asbestos exposure as causes of her COPD. 

Ms. Whitten has seen other claims with the same circumstances 

that were denied. Dr. Bowman added that the criteria were given 

in the decision letter. There was one criterion that was not 

met, which relates to latency, in which the diagnosis should be 

made at least 20 years after the initial exposure during the 

covered employment. Because it did not meet this criterion, 

additional development was undertaken to determine if there was 

scientific merit to a link between the accepted diagnosis of 

COPD and potential exposure to toxic substances. 

-7539

This case was a breast cancer claim reviewed by Mr. Catlin and 

Dr. Mikulski. The claimant was a 68 year old female who worked 

on the Savannah River site. She worked for a total of 

approximately 13 years as a painter, photographer, and janitor. 

The claim was processed under Subtitle B, with a probability of 

causation of 17.95 percent, and it was subsequently denied. The 

claimant then submitted another claim due to the morphological 

picture of the breast cancer being very similar to salivary 

gland cancer, which was also denied. The breast cancer claim was 

eventually reopened, given the new special exposure cohort 

designation for the Savannah River site that included the years 

and jobs that were applicable to this claimant. Upon the search 

for exposures related to breast cancer in the SEM, no input was 

found. It was a reopened claim that should be processed soon. 

Mr. Catlin added that the SEM review found no link to breast 

cancer in any chemical exposures. Additionally, Mr. Catlin 

suggested the Board discuss how to handle certain cases where 

the SEM is not up to date. 

-8472

This case was a Parkinson's disease claim reviewed by Dr. 

Friedman-Jimenez and Dr. Silver. The claimant was a 78 year old 

man who worked as a maintenance machinist, mechanical 

technician, plant maintenance technician, assembly machinist 

from 1974 to '78, and as a tech liaison specialist 

andmechanical technician from 1978 to 1993 at Los Alamos and 

Lawrence Berkeley National Labs. The claimant was diagnosed with 

Parkinson's disease in 2017, although he may have had symptoms 

several years prior to the diagnosis. The claim was denied based 

on judgment by the CMC of too long a latency period for 

stainless steel and carbon steel, and the judgment by the 

toxicologist that the literature in 2018 did not support a 
causal relationship between TCE exposure and Parkinson's 

disease. The IH report and the CMC report, perhaps as a result 

of the toxicology report, did not discuss TCE exposure. Dr. 

Friedman-Jimenez indicated that he disagreed with the denial and 

that it needs to be reconsidered. He said that it seems to 

illustrate a problem in the way the system is set up. Somehow 

the IH, CMC, toxicologist and the DOL all focused incorrectly on 

carbon steel and stainless steel, without investigating the

manganese content of the steel. They failed to identify TCE as a 

likely causal agent. Dr. Friedman-Jimenez said there was more

discussion needed on why certain studies pertaining to TCE were 

dismissed by the toxicologist. He also added that the claims 

examiner's initial question was framed too narrowly. Dr. Silver 

added that there was muddiness about the claimant's job title 

and tasks from the time that he walked into the resource center 

and filled out the OHQ. The claimant said he worked at the Meson 

facility. Someone knowledgeable at the site would have known 

that meant the Los Alamos Meson Physics Facility; however, it 

was misspelled "Mason," and as such there was a mix-up regarding 

his duties and exposures. 

-7904

This case was a Parkinson's disease claim reviewed by Ms. Pope. 

The claim was accepted. The claimant was a security guard. There 

is language identifying that it is highly likely that the 

occupational lead exposure was at a high level. Ms. Pope said 

she did not have a problem with this case. Security guards tend 

to go everywhere on the plant, and as such are potentially 

exposed to a lot of things. This claim did have a significant 

amount of supporting documents that helped develop the case. Ms. 

Pope reiterated the importance of having the presumption from 

the IHs, CMCs and the claims examiners that a job category as a 

RCT or security guard has a very high potential for exposure. 

-7855

This case was a cancer claim reviewed by Dr. Silver and Mr. 

Tebay. The claimant worked at Oak Ridge National Laboratory 

mostly as a clerk. He had prostate cancer, asthma, and squamous 

cell carcinoma of the ear. He got a very low probability of 

causation for the prostate cancer from NIOSH, less than 2 

percent. The asthma was not the main focus. The claimant had job 

tasks described on the Atomic Trades Labor Council Worker 

Screening Program Questionnaire that were significantly dirtier 

than the normal duties of a records clerk. He was an assembly 

auditor, and describes being in a particular building, 9212, 

with highly enriched uranium operations when components were 

being taken apart and maintained. His cancer claim was denied, 
but when Mr. Silver looked at the latest SEM for Building 9212, 

mineral oil is one of the potential exposures. Mr. Silver said 

that on appeal, the claimant would need to argue that he was not 

just a records clerk, that he was also involved in quality 

assurance, and that job title at that location produces an 

exposure to mineral oil that was missed. Mr. Tebay concurred 

with Dr. Silver's conclusions. Mr. Tebay added that there seemed 

to be several places where the CMC, claims examiner and the

diagnosing physician did not agree that there was a clear 

diagnosis for the asthma. 

Consistency in Beryllium Sensitivity:

Chair Markowitz led the discussion. The Board recommended in 

2017 that the finding of two borderline BeLPT tests should be 

considered the equivalent of one positive BeLPT for the purpose 

of claims adjudication under Subpart E and EEOICPA. As proposed, 

the program should recognize the sensitivity and eligibility for 

compensation and treatment. The response from the program was 

that they do not support this change. They claimed that the 

recommendation was inconsistent with the explicit statutory 

requirement that beryllium sensitivity is "established by an 

abnormal BeLPT performed on either blood or lung lavage cells." 

They also contended that the program is bound by "specific, 

clear and unambiguous language of the governing statute." Chair 

Markowitz said that the program was not unsympathetic to the 

issue and the Board's recommendation; however, the plain text of 

the statute tied their hands into saying that an abnormal BeLPT 

test is required. 

Mr. Tebay asked for an explanation on why the definition cannot 

change. Mr. Vance pointed out that the language cited is 

legislative in nature. The program has no sway in changing legal 

standards that were passed by Congress. The program is thus 

administratively bound to ensure that claims satisfy the 

standard. Because the language exists in the statute, the 

program is legally responsible for applying it in case 

adjudication. The only other option would be to have the U.S. 

Congress pass an alternative law that provides for a different 

standard. 

Dr. Friedman-Jimenez said this is not the first time that 

legislation has equated test results with a diagnosis. This is a 

problem because it amounts to legislators practicing medicine 

without a license. In medicine, test results are not absolute. 

All diagnoses are probabilistic in medicine. It requires a 

clinician to make a decision, a judgment usually, on whether the 
diagnosis holds based on all available evidence, which includes 

a physical exam, diagnostic test results, imaging, and other 

things. In this case, a positive test result is equated with 

berylliosis, chronic beryllium disease or beryllium 

sensitization, which is really a clinical judgment. Dr. 

Friedman-Jimenez feels strongly that it is out of place for the 

legislators to make a diagnosis based on a test result without 

the necessary clinical considerations. 

Chair Markowitz suggested that the Board recommend to the 

Department that they consider asking Congress to make a 

technical amendment to the Act, recognizing that individuals 

have beryllium sensitivity if they have or have had exposure to 

beryllium while working at the DOE and have multiple borderline 

BeLPT tests.

Dr. Friedman-Jimenez also suggested putting together a peerreviewed paper reviewing the diagnostic test and making a 

recommendation to the test company that they modify their 

interpretation of the test so that two borderline tests are 

equivalent to a positive test. That way it would not require an 

act of Congress, but it would require a redefinition of an 

abnormal test by the company that handles the tests. 

Mr. Vance confirmed that the Department would respond to 

whatever recommendation the Board makes. Chair Markowitz said 

that even if their recommendation is not actionable by the 

Department, at least it provides some visibility to the issue 

that interested individuals could then raise to Congress. 

After some additional back and forth, Dr. Friedman-Jimenez and 

Ms. Whitten ultimately volunteered to be on a subcommittee to 

work on the language of the recommendation. Going forward, the 

issue will be explored further in a working group. 

Nominations for Next Term; Active Issues for Board's Next Term:

Members are able to self-nominate to continue to serve on the 

Board. There are some current Board Members who are not going to 

reapply. Chair Markowitz thanked those individuals for their 

contributions to the Board over the six years since its 

inception. The Board has contributed to improving the program 

and raising important issues over its own lifetime and prior 

boards. 

Chair Markowitz presented a list of issues that are still active 

and should thus be on the agenda for the future Board. He