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UNITED STATES DEPARTMENT OF LABOR

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ADVISORY BOARD ON TOXIC SUBSTANCES

AND WORKER HEALTH

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WORKING GROUP ON PRESUMPTIONS

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MEETING

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WEDNESDAY,

JUNE 21, 2017

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The Advisory Board met telephonically 

at 1:00 p.m. Eastern Time, Steven Markowitz, Chair, 

presiding.

MEMBERS

SCIENTIFIC COMMUNITY:

KENNETH Z. SILVER

LESLIE I. BODEN

MEDICAL COMMUNITY:

STEVEN MARKOWITZ, Chair

VICTORIA A. CASSANO

CLAIMANT COMMUNITY:

KIRK D. DOMINA

GARRY M. WHITLEY

FAYE VLIEGER
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BOARD MEMBERS ALSO PRESENT:

KIRK DOMINA

DESIGNATED FEDERAL OFFICIAL:

CARRIE RHOADS
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1 P-R-O-C-E-E-D-I-N-G-S

2 1:05 p.m.

3 MS. RHOADS: Hi everybody. My name's 

4 Carrie Rhoads. I'd like to welcome you to today's 

5 teleconference meeting of the Department of Labor's 

6 Advisory Board on Toxic Substances and Worker 

7 Health, the Presumptions Working Group. 

8 I am the board's designated federal 

9 officer or DFO for today's meeting.

10 First of all we appreciate the time and 

11 the work of our board members in preparing for this 

12 meeting and for their time spent working after.

13 I'll introduce board members and take 

14 a quick roll call. Dr. Steven Markowitz is the 

15 chair of this group and chair of the advisory board.

16 CHAIR MARKOWITZ: Here.

17 MS. RHOADS: And the members are Dr. 

18 Victoria Cassano.

19 MEMBER CASSANO: Here.

20 MS. RHOADS: Ms. Faye Vlieger.

21 MEMBER VLIEGER: Present.

22 MS. RHOADS: Dr. Leslie Boden. Dr. 
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1 Boden, are you on the line?

2 MEMBER BODEN: Here.

3 MS. RHOADS: Thanks. Mr. Garry 

4 Whitley.

5 MEMBER WHITLEY: Here.

6 MS. RHOADS: Dr. Ken Silver.

7 MEMBER SILVER: Here.

8 MS. RHOADS: Dr. John Dement and Dr. 

9 Laura Welch are both in this group but could not 

10 make the call today. And Mr. Kirk Domina is also 

11 on the line with us.

12 In the room with me is Melissa Schroeder 

13 from SIDEM, our contractor. 

14 Today's meeting is scheduled from 1 

15 o'clock to 3:30 Eastern time. I don't know if we'll 

16 take a break. If the discussion allows and Dr. 

17 Markowitz wants to that is fine.

18 Copies of all meeting materials and any 

19 written public comments are or will be available 

20 on the board's website under the heading Meetings 

21 and a listing there for this meeting.

22 The documents will also be up on the 
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1 WebEx screen so everyone can follow along with the 

2 discussion.

3 The board's website can be found at 

4 dol.gov/OWCP/energy/regs/compliance/advisoryboar

5 d.htm.

6 When you visit the website after 

7 clicking on today's meeting you'll see a page 

8 dedicated entirely to the meeting.

9 The webpage contains publicly 

10 available material submitted to us in advance and 

11 we'll publish any materials that are provided to 

12 this subcommittee.

13 There you should also find today's 

14 PowerPoint presentation as well as instructions 

15 for participating remotely.

16 If you are participating remotely and 

17 you're having a problem please email us at 

18 energyadvisoryboard@dol.gov.

19 If you're joining by WebEx please note 

20 that the session is for viewing only and will not 

21 be interactive.

22 The phones will also be muted for 
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1 non-advisory board members.

2 If you're a speaker and you're not 

3 speaking please mute your phone because we're 

4 getting a lot of background noise right now.

5 Please note that we do not have a 

6 scheduled public comment session today. The 

7 call-in information has been posted on the website 

8 so the public can listen in but not participate 

9 in the discussion.

10 The advisory board voted at its April 

11 2016 meeting that the subcommittee meeting should 

12 be open to the public. A transcript and minutes 

13 will be prepared from today's meeting.

14 During board discussions today as we're 

15 on a teleconference line please speak clearly 

16 enough for the transcriber to understand. When 

17 you begin speaking especially at the start of the 

18 meeting please state your name so we can get an 

19 accurate record of the discussion.

20 And I'd like to ask our transcriber to 

21 let us know if you're having any issues with hearing 

22 or with recording.
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1 As the DFO I see that the minutes are 

2 prepared and ensure they're certified by the chair. 

3 The minutes of today's meeting will be available 

4 on the website no later than 90 calendar days from 

5 today.

6 If they're available sooner we'll 

7 publish them sooner as well.

8 We'll also be publishing verbatim 

9 transcripts which are obviously more detailed in 

10 nature. Those transcripts should be available on 

11 the website within 30 days.

12 I'd also like to remind the advisory 

13 board members that there are some materials that 

14 have been provided to you in your capacity as 

15 special government employees and members of the 

16 board which are not for public disclosure and can't 

17 be shared or discussed publicly including in this 

18 meeting.

19 Please be aware of this as we continue 

20 with the meeting today. These materials can be 

21 discussed in a general way which does not include 

22 using any personally identifiable information such 
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1 as names, addresses, specific facilities of the 

2 cases being discussed.

3 And with that I convene the meeting of 

4 the Advisory Board on Toxic Substances and Worker 

5 Health, Presumptions Working Group. And I'm going 

6 to turn it over to Dr. Markowitz.

7 CHAIR MARKOWITZ: Thank you, Carrie. 

8 And actually, thank you Carrie for all the support 

9 work and work you do with the board. It's extremely 

10 useful.

11 I'd like to welcome people onto this 

12 call from the Presumptions Working Group. I'd also 

13 like to welcome any members of the public who are 

14 listening in.

15 We don't have a public comment period 

16 during this working group meeting or for that matter 

17 any of the subcommittee calls as Carrie mentioned.

18 However, we do welcome always written 

19 public comments which we read and try to take into 

20 consideration in terms of our discussions and 

21 decisions.

22 I think first we should probably just 
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1 go around in case there are any members of the public 

2 who aren't familiar with board members and just 

3 very briefly identify ourselves.

4 I'm Steven Markowitz. I'm an 

5 occupational medicine physician and 

6 epidemiologist, and professor at the City 

7 University of New York.

8 And Carrie, if you could just cite 

9 peoples' names and then they can respond. That's 

10 probably the easiest way.

11 MS. RHOADS: Okay. Dr. Cassano.

12 MEMBER CASSANO: This is Dr. Victoria 

13 Cassano. I am also an occupational and 

14 environmental medicine physician. Retired Navy 

15 physician and also worked at VA in the central 

16 office doing environmental health policy. And now 

17 have my own company. Thank you.

18 MS. RHOADS: Okay. Ms. Vlieger.

19 MEMBER VLIEGER: Faye Vlieger, former 

20 Hanford worker and worker advocate.

21 MS. RHOADS: Dr. Boden?

22 MEMBER BODEN: This is Les Boden. I'm 
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1 a professor at Boston University School of Public 

2 Health.

3 MS. RHOADS: Mr. Whitley?

4 MEMBER WHITLEY: Garry Whitley. I 

5 worked at Y-12 National Security Complex Oak Ridge 

6 for 42 years and worked with the worker health 

7 protection program.

8 MS. RHOADS: Dr. Silver?

9 MEMBER SILVER: Ken Silver, associate 

10 professor of environmental health at East Tennessee 

11 State University.

12 MS. RHOADS: Mr. Domina.

13 MEMBER DOMINA: Kirk Domina. I'm the 

14 employee health advocate for the Hanford Atomic 

15 Metal Trades Council. We're from Washington. 

16 I've been here 34 years and we represent 

17 approximately 2,600 current workers.

18 MS. RHOADS: Okay. Go ahead, Dr. 

19 Markowitz.

20 CHAIR MARKOWITZ: Thank you. So the 

21 agenda for today really is to discuss the PowerPoint 

22 which I prepared which really principally addresses 
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1 one issue which are looking at the medical criteria 

2 for the diagnosis or the use of medical information 

3 for application to claims under EEOICPA with 

4 relation to various asbestos related diseases.

5 And then at the end I open up the --

6 try and open up the discussion to consideration 

7 of other issues for the future in terms of 

8 presumptions.

9 Is there any other agenda item that 

10 members of the board would like to propose or 

11 discuss today?

12 Okay, well if something comes up I think 

13 we're going to have time because I don't think the 

14 agenda so far will occupy nearly all of our time, 

15 although I always seem to underestimate how much 

16 discussion is generated. But regardless.

17 And by way of taking a break we'll see 

18 how things go. In an hour or an hour and 15 minutes 

19 if it looks like we're going to go for quite a while 

20 longer then I'll call for a break.

21 On the presumptions we've been dealing 

22 with scientific technical medical issues that some 
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1 members of the board are much more familiar with 

2 than other members.

3 And I just want to reiterate that if 

4 there are issues, terms, or comments that people 

5 don't understand we can very quickly explain things 

6 in a way that allows everybody to understand.

7 Because everybody makes important 

8 contributions and I really don't want folks feeling 

9 shut out in any sense because the doctors are 

10 talking about medical stuff.

11 So we should be able to communicate in 

12 a way where everyone understands and can 

13 contribute. So I probably should have said that 

14 before, but in any event I feel that reflects the 

15 spirit of the board.

16 So let's go to the PowerPoint. And go 

17 to the first slide.

18 Now, just to summarize, this is the work 

19 we've already done on presumptions. And you see 

20 listed the first four content, either diseases or 

21 exposures.

22 We've mostly focused on exposure 
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1 presumptions rather than on helping DOL make a 

2 determination about how to recognize a diagnosis 

3 of disease.

4 We did that for asthma but we didn't 

5 really do that for COPD, for asbestos-related 

6 diseases, and we didn't weigh in on how they should 

7 look at hearing loss in terms of diagnosing hearing 

8 loss.

9 We did, however, weigh in on the 

10 exposure side. And then early on we had 

11 recommended actually cessation of use of a 

12 presumption for post-95 toxic exposures, a 

13 presumption which is the recommendation that DOL 

14 has accepted.

15 And then we earlier this week formally 

16 endorsed as a board the current presumption, so 

17 that's not a recommended change at all in how DOL 

18 treats sarcoidosis and its equivalents with CBD 

19 if a person is a covered beryllium employee. So 

20 that's the work we've done so far.

21 And we've concentrated on I think 

22 fairly common outcomes for which people make 
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1 claims, especially on the respiratory disease side, 

2 but also on the hearing loss. So the next slide.

3 So, I think it was in the last meeting 

4 when we were discussing asbestos-related diseases 

5 that someone suggested that maybe we should look 

6 at the medical side, at the diagnostic side, and 

7 see if there's some helpful suggestions that we 

8 could make to DOL in terms of how they recognize 

9 various asbestos-related disease.

10 Now, from their manual -- by the way, 

11 if you haven't seen the updated procedures manual, 

12 updated, the date was April 2017, you should take 

13 a look. It's very nicely organized.

14 I don't think the content has been 

15 changed, but it's organized in a way that makes 

16 it much easier to locate things.

17 So as we actually discussed in April 

18 that the current program recognizes a variety of 

19 asbestos-related diseases including those not --

20 that don't represent cancer, and that's asbestosis 

21 or scarring of the lung tissue itself due to 

22 asbestos. Pleural plaques and pleural thickening, 
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1 scarring of the covering of the lungs, the pleura.

2 They actually mentioned something 

3 which is fairly uncommon and we haven't discussed 

4 before, but sometimes asbestos after many years 

5 causes a fluid to accumulate, fluid that's 

6 elaborated by this covering of the lung, the pleura. 

7 And it's called pleural effusion. Accumulates 

8 at the bottom of the lung and then eventually 

9 resolves.

10 It's not a malignancy. It usually 

11 leaves behind some scarring, but it's something 

12 actually that the program and the procedure manual 

13 recognizes. So even though we didn't suggest it 

14 in April it is part of the disease spectrum of the 

15 program.

16 And then secondly, the various 

17 malignancies that are recognized by the program 

18 which are malignant mesothelioma, cancer of the 

19 pleura.

20 Now, by the way, mesothelioma occurs 

21 elsewhere in the body besides in the chest. It 

22 occurs about 10 percent of the time in the abdomen 
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1 where it's called peritoneal mesothelioma.

2 And then less than 1 percent of the time 

3 at other locations.

4 And we're not going to discuss 

5 mesothelioma outside of the chest today because 

6 the procedure manual doesn't -- I don't think it 

7 addresses mesothelioma of the abdomen or otherwise 

8 known as peritoneal mesothelioma.

9 And so we're just sort of skipping over 

10 that for now. It's extremely rare and there are 

11 about 250 cases total in a year among Americans, 

12 350 million people of which there are a total of 

13 250 cases total per year of peritoneal 

14 mesothelioma.

15 So we're not going to address that 

16 today.

17 And then the other cancers including 

18 lung cancer, and cancer of the ovary, and cancer 

19 of the larynx. Next slide.

20 By the way, I'll occasionally take a 

21 breath so jump in with comments, questions, or 

22 interrupt me so that this isn't a monologue. 
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1 At certain points I'll open it up for 

2 specific comments.

3 Now on the next few slides what I do, 

4 I simply abstracted the current language from the 

5 procedure manual on how claims examiners and the 

6 program as a whole view medical evidence of 

7 asbestosis and other conditions.

8 So where at the top of the slide it says 

9 the EEOICPA Procedure Manual Chapter 18 this is 

10 the language that they use. 

11 So the claims examiner is instructed 

12 for a claim of asbestosis to look at a number of 

13 different sources of evidence.

14 And they look for an opinion of a 

15 qualified physician. This is presumably the 

16 treating physician, at least initially. And that 

17 that opinion is based on a chest X-ray finding, 

18 a CAT scan finding, CT scan finding, an MRI which 

19 is a fancier imaging study of the chest, pulmonary 

20 function tests or breathing tests, or lung biopsy.

21 Or, and/or another source of evidence

22 is the physician report from the DOE's former worker 
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1 program. 

2 And/or another source of evidence is 

3 the death certificate.

4 So, I have to say, and here I'm going 

5 to open it up for comments, I have to say I'm a 

6 little puzzled still about how this works.

7 The claims examiner is collecting 

8 information the claimant has sent in. They get 

9 hopefully some report from the treating physician 

10 and the treating physician say in a case of 

11 asbestosis might say this is asbestosis that the 

12 person has and they may or may not cite the evidence 

13 for that diagnosis.

14 And presumably the claims examiner gets 

15 a report of the chest X-ray, or the CT scan, or 

16 the biopsy.

17 And what I'm trying to understand is 

18 does the claims examiner look at not just the 

19 physician report, but they're looking at the chest 

20 X-ray report and the CT report, the lung biopsy 

21 report, and they're trying to see whether what they 

22 are reading in those reports constitutes 
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1 asbestosis, or there are findings that allow them 

2 with some confidence to say yes, this person's claim 

3 is for asbestosis.

4 Is that your -- speaking to the other 

5 board members here -- your general impression of 

6 the process of how the claims examiner works?

7 MEMBER CASSANO: Steve, I was kind of 

8 confused as you know from my email about the --

9 I'm not quite sure whether it's all -- I guess that 

10 they're saying that these are all the sources of 

11 evidence, but I don't think any of them are used 

12 definitively.

13 I think there's a lot of -- what's the 

14 word I'm looking for. There's a lot of 

15 interpretation allowed here.

16 So this is what I wrote you about, DOE 

17 WP physician findings. And that's when I asked, 

18 gee, does it mean that only -- that any other 

19 qualified MD, there has to also be chest X-rays, 

20 CT, MRI, before DOE from a worker program physician 

21 all you need is that physician's statement that 

22 it's asbestosis.
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1 So I don't know whether you need any 

2 combination of these, or any one of these. To me 

3 it's confusing and I presume then that it's probably 

4 confusing for CEs as well. I don't know.

5 CHAIR MARKOWITZ: Right. Other 

6 comments? 

7 MEMBER VLIEGER: This is Faye. What 

8 I find with asbestos diagnosis, unless it's one 

9 of the former worker physicians who's actually 

10 looking at it and saying that this is asbestosis 

11 it's very hard to get a diagnosis from your 

12 pulmonary physician because they feel unable to 

13 make a diagnosis from what they see.

14 And so I'm not sure how to change that. 

15 Maybe include the wording of what they're supposed 

16 to be looking for more clearly.

17 But even at that if you show them the 

18 document they say well, I don't know how to diagnose 

19 asbestos. And this is from qualified 

20 pulmonologists.

21 So I don't know if we can fix that or 

22 not. 
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1 My experience is that you have some 

2 piece of evidence, not all of them, and then you 

3 have to have a physician stating that this is what 

4 this is.

5 In the past the former worker program 

6 physicians were not accepted because it wasn't the 

7 attending physician. That's considered a one-time 

8 occupational medicine physician which I find 

9 appalling, but that's what they've been doing.

10 CHAIR MARKOWITZ: And later I'm going 

11 to show some slides of the former worker program's 

12 language that they -- or basis for their decisions.

13 Other comments.

14 MEMBER WHITLEY: This is Garry. In 

15 Oak Ridge our pulmonary doctors gives a diagnosis 

16 and writes the letter, sends it -- gives the 

17 claimant a letter and they send a letter that 

18 they've been diagnosed with asbestosis.

19 And usually they don't question it 

20 pretty much. And the doctors here in Oak Ridge, 

21 if you've been working with asbestos in groups that 

22 have, and they diagnose it, that's pretty much what 
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1 all has to happen.

2 I had a friend this week that just told 

3 me he got his claim of asbestosis and it hadn't 

4 been probably three or four months since he filed.

5 MEMBER CASSANO: And that was because 

6 the physician in the local area -- is that just 

7 a local physician or is that within a former worker 

8 program? 

9 MEMBER WHITLEY: No, it's a local 

10 pulmonologist in this area. We've got several 

11 right here in Oak Ridge and they see a lot of people. 

12 They diagnose asbestos pretty often.

13 MEMBER CASSANO: I think people that 

14 are used to seeing individuals exposed to asbestos 

15 don't have difficulty diagnosing it. Whether 

16 you're an occupational physician, or a 

17 pulmonologist, or an internist.

18 But even pulmonologists who don't see 

19 it are uncomfortable diagnosing it I think. They 

20 call it either pulmonary fibrosis or they --

21 whatever they're going to call the small -- I'm 

22 not thinking straight for some reason, but whatever 
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1 they're going to call what they see on a chest X-ray 

2 they're uncomfortable calling it asbestosis.

3 A lot of times because they don't ever 

4 ask for an occupational history so they don't know 

5 the person's been exposed to asbestos.

6 CHAIR MARKOWITZ: For the transcriber 

7 that interchange was between Garry Whitley and Dr. 

8 Tori Cassano.

9 MEMBER CASSANO: Sorry about that.

10 CHAIR MARKOWITZ: That's okay. Garry 

11 Whitley is the one with the attractive accent so 

12 you can always recognize him.

13 MEMBER CASSANO: Yes, I'm the one that 

14 speaks like a doctor.

15 CHAIR MARKOWITZ: Other comments?

16 MEMBER SILVER: This is Ken. This is 

17 pretty interesting. We have two extremes laid out. 

18 One is at Oak Ridge where the pulmonologists are 

19 experienced and cooperative in making the 

20 diagnosis.

21 And then we have Faye's experience 

22 where they're not. And it seems an important 
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1 question for us is how much discretion do the claims 

2 examiners have between those two poles and how do 

3 they exercise it.

4 And they qualified in the case of Oak 

5 Ridge to overrule or are they qualified to construct 

6 a diagnosis for a Hanford worker who didn't get 

7 one from their pulmonologist.

8 MEMBER BODEN: This is Les Boden. I'm 

9 wondering following up on this conversation whether 

10 there ought to be some either information or 

11 guidance for the pulmonologists who are treating 

12 people.

13 So information might be providing them 

14 with information about whether that person worked 

15 on a job that DOE would consider to be potentially 

16 asbestos exposed, or guidance about how to think 

17 about what DOE is looking for from them which would 

18 presumably include some information about exposure 

19 to asbestos.

20 This is for Faye's physicians and not 

21 for Garry's I guess.

22 MEMBER CASSANO: What I find with 
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1 treating physicians a lot that are experienced at 

2 either primary care or the (inaudible) doc is that 

3 even if you give them all of that they're always 

4 going to waffle. I see this all the time.

5 They're never going to say it's at least 

6 -- it's most probably. That's the best you're 

7 going to get. You're never going to get even an 

8 at least as likely as not statement, or a definitive 

9 statement that what they're seeing on chest X-ray 

10 on the person's pulmonary function is due to 

11 asbestos.

12 They're going to say is consistent with 

13 asbestos, consistent with asbestos exposure, 

14 probably due to asbestos, or possibly due to 

15 asbestos.

16 I find that most of them aren't going 

17 to pin etiologic certainty with something that does 

18 not -- even with stuff that they are very familiar 

19 with. A lot of times they won't do it.

20 So I think we need to find some way of 

21 giving the CEs enough information. If they have 

22 a definitive diagnosis then that's fine, but if 
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1 they've got a chest X-ray that has fibrosis or has 

2 B reading that shows one zero B read or something 

3 like that.

4 I think it needs to go to a CMC. 

5 Because I don't think for the most part without 

6 something clear that says asbestosis that it goes 

7 to radiology reports or MRI, CT, or whatever that 

8 says definitively asbestosis. 

9 They need that clinical 

10 interpretation. 

11 CHAIR MARKOWITZ: This is Steve. And 

12 that's probably the way it works.

13 In fact, after this call I'll ask for 

14 some clarification from DOL about how this works 

15 in practice.

16 But we're going to get into some 

17 specific language on medical evidence which I think 

18 will help the process. Even if the process doesn't 

19 change it'll help the CE by giving more specifics 

20 about diagnosis.

21 It'll help the treating physician 

22 because they'll be able to look at the specifics 
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1 that by the way exist in some other aspects of the 

2 program, some of the statutory, for instance, 

3 beryllium and silica, actually in the act.

4 It's not in the act about asbestosis 

5 nor in the procedure manual.

6 So let's continue with the next slide. 

7 So this is cited from the procedures manual about 

8 the opinion of the qualified physician who states 

9 on any or all of the following, pulmonary 

10 interstitial fibrosis with or without heart 

11 enlargement, CT or MRI finding of lung scarring, 

12 pleural thickening, heart enlargement, pulmonary 

13 function test finding of restriction. That's 

14 lower lung volumes. The person can't breathe 

15 sufficiently. 

16 And the PFT requires a physician 

17 interpretation or lung biopsy. And it mentions 

18 that lung biopsy sputum cytology which is simply 

19 looking at cells in sputum or a bronchial lavage 

20 which is putting fluid into the lung and then taking 

21 it out and looking at cells. It often shows 

22 asbestos bodies which are old asbestos fibers that 
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1 are coated with protein and have a very distinct 

2 appearance.

3 Those findings are helpful but not 

4 definitive. So that's kind of a summary from the 

5 manual as to how the CE and others look at the 

6 information that the treating physician provides. 

7 Next.

8 And/or the former worker program. And 

9 the assessment. And the language of the procedure 

10 manual says they accept the physician assessment 

11 of asbestosis or asbestos related lung disease.

12 And from the language frankly looks 

13 like the CE doesn't necessarily have to look at 

14 the data that we just went over in the previous 

15 slide, meaning chest X-ray, CT results or the like.

16 It looks like it can be based on the 

17 FWP determination. And part of the logic of that 

18 would be frankly the FWP determination is based 

19 on the chest X-ray and occupational history which 

20 we'll go over in a second.

21 And then the third source of evidence 

22 -- next slide -- that the CE or the claimant process 
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1 can examine is the death certificate. 

2 And here they want to see asbestosis 

3 on the death certificate as either the cause or 

4 a contributing factor.

5 And if the death certificate says 

6 something other than asbestosis because it very 

7 easily could say pulmonary fibrosis, or fibrosis 

8 of the lung, or interstitial fibrosis, or something 

9 that is kind of equivalent but less specific than 

10 asbestosis then the claims examination process 

11 needs evidence, other evidence to support the 

12 diagnosis of asbestosis which makes a lot of sense. 

13 Next slide.

14 And moving onto cancers. The 

15 procedure manual requires that the CE find 

16 confirmation of the diagnosis of mesothelioma of 

17 the pleura. And it's not specified exactly what 

18 that is although in practice it's almost assuredly 

19 it's going to be the pathology report, examination 

20 of the tissue of the cancer.

21 Again, from the procedure manual, now 

22 moving onto pleural plaques and pleural effusions 
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1 this is in the non-malignant category, plaques 

2 being the scarring of the pleura.

3 And then the supportive medical 

4 evidence that is examined in the claims process 

5 includes the physician diagnosis, some chest X-ray 

6 or CT, in other words some imaging evidence of 

7 pleural plaques or pleural thickening which is not 

8 due to surgery or trauma.

9 And we've got rounded atelectasis which 

10 is quite specific to asbestos. What happens is 

11 that the pleura sits on top of the lung and when 

12 it gets scarred, and the scarring can get exuberant 

13 or kind of aggressive, it can envelop a section 

14 of the nearby lung and kind of wrap -- the scarring 

15 of the pleura wraps around that section, a small 

16 section of the lung.

17 And it's called rounded atelectasis. 

18 And it has the potential to appear in the chest 

19 X-ray or CT scan as fairly specific for 

20 non-malignant asbestos related disease.

21 And then finally the presence of 

22 bilateral pleural effusions. 
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1 So again, these are just the pieces that 

2 are examined in the process of looking at a claim 

3 for pleural plaques or pleural effusions.

4 By the way these are two separate 

5 entities. This pleural plaque, the thickening, 

6 the scarring is one thing, and the pleural effusion 

7 is something separate, much less common.

8 MEMBER BODEN: This is Les Boden. Can 

9 I interrupt just for a second to clarify for me?

10 So I see these various pieces of 

11 supportive medical evidence. Is there any 

12 guidance to the CE about how to use these various 

13 pieces to come to a conclusion? And that would 

14 hold clearly for the asbestos.

15 CHAIR MARKOWITZ: Yes. So if you go 

16 to the previous slide just so we can look at what 

17 we were looking at.

18 I don't know what exists outside the 

19 procedure manual because I didn't really look at 

20 the circulars, go around the circular bulletins 

21 or any other sources of guidance. So there may 

22 be something else somewhere else, but probably not 
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1 much actually.

2 This is a summary of how the CE looks 

3 at these cases for claims of information.

4 MEMBER BODEN: Right.

5 CHAIR MARKOWITZ: There's no more 

6 specificity than this. Unless I somehow didn't 

7 summarize these properly, but I think I got the 

8 keywords right.

9 MEMBER BODEN: Okay. So I'm thinking, 

10 I'm looking at this is like how many of the four 

11 things on this list would I need before I was 

12 convinced that I should approve the claim for 

13 pleural plaques.

14 Or which ones are particularly 

15 convincing to me. That's not part of this, 

16 correct? 

17 CHAIR MARKOWITZ: Not that I saw. I 

18 mean, what probably happens, my guess is that 

19 physician diagnosis, the physician cites an imaging 

20 study or the CT scan as evidence. 

21 That would be -- predominantly in 

22 asbestos disease that would be the typical or the 
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1 expected kind of scenario.

2 MEMBER BODEN: Right.

3 CHAIR MARKOWITZ: Now, if the CE just 

4 sees a physician diagnosis without reference to 

5 a chest X-ray I'm not sure what happens.

6 MEMBER BODEN: I would suspect not be 

7 convincing.

8 CHAIR MARKOWITZ: Right. Nor frankly 

9 should it.

10 MEMBER BODEN: Yes, appropriately so.

11 CHAIR MARKOWITZ: Right, right. So, 

12 next slide.

13 And then there is instruction on these 

14 specific plaques and effusions that the claims 

15 examiner will consult either with the treating 

16 physician or the CMC if evidence was inconclusive.

17 If the pleural thickening is in an area 

18 of surgery or trauma, or if there's other --

19 evidence of other causes of a pleural effusion is 

20 present.

21 I would just tell you pleural 

22 thickening, if a person has a traumatic rib 
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1 fracture, or if the person undergoes chest surgery 

2 it would typically leave behind an area of pleural 

3 thickening in which case you wouldn't really 

4 ascribe that pleural thickening or plaque to 

5 asbestos. You would say it's due to that trauma 

6 or surgery. It's not necessarily -- all the time.

7 And then pleural effusions, this is 

8 item number three, pleural effusions are very 

9 common. Asbestos related, benign pleural effusion 

10 is very uncommon and so it makes a lot of sense 

11 to look for other more ready explanations for 

12 pleural effusions. Next slide.

13 So, just to move to what the former 

14 worker program does. These are surveillance case 

15 definitions so these are not diagnostic. These 

16 are how we identify for the purposes of reporting 

17 to DOE in large populations that we screen how we 

18 identify a case of asbestosis which is they have 

19 a history of exposure to asbestos or a job title 

20 in which it's reasonably likely to have exposure 

21 to asbestos.

22 And we require a B reading which is a 
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1 chest X-ray by a physician who is specially trained 

2 and passed a test given by NIOSH for reading X-rays 

3 for dust diseases.

4 The B reading of a standard chest film 

5 demonstrating bilateral irregular opacities in the 

6 lung tissue itself with a specific shape and size. 

7 And stu means irregular.

8 And the profusion score meaning a 

9 density of the lowest level or higher, the lowest 

10 level being 150 which is a relatively slight 

11 disease.

12 So there's some specificity. It can't 

13 exactly be transferred over to the program, but 

14 it's an example of how the former worker program 

15 looks at it.

16 And notice that if she's not on the film 

17 -- chest film, it doesn't discuss pulmonary 

18 function tests or any other source of evidence. 

19 Next slide.

20 MEMBER BODEN: Sorry, this is Les 

21 again. So it appears to me, and I don't really 

22 know this stuff that well, that this would be 
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1 somewhat more restrictive than you might get from 

2 using the other pieces of evidence that were talked 

3 about before, more consistent maybe, but maybe also 

4 more restrictive or not.

5 CHAIR MARKOWITZ: Well, it doesn't 

6 address the death certificate obviously. The FWP 

7 or screening program. 

8 MEMBER BODEN: But putting the death 

9 certificate aside. So the question is at least 

10 in your opinion would it be -- would using this 

11 definition only screen in fewer cases than.

12 CHAIR MARKOWITZ: So it depends on --

13 probably not many. It could be more restrictive. 

14 It depends on how the current guidelines are 

15 applied.

16 For instance, notice that in this 

17 definition that it's nothing about breathing tests.

18 MEMBER BODEN: Right.

19 CHAIR MARKOWITZ: If the claims 

20 examiner is looking at a case in which a person 

21 reports asbestos exposure so that's off the table 

22 -- has a normal X-ray, or X-ray findings that are 
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1 a lot less specific than what we were looking at 

2 on the screening here, but has restriction on 

3 pulmonary function.

4 Would the claims examiner, the treating 

5 physician, the claims examiner or the CMC consider 

6 that to be sufficient to say it's asbestosis.

7 In practice they might. Would they be 

8 right? Unlikely. But they could do that.

9 MEMBER BODEN: The other problem with 

10 this for general use would be that you'd need to 

11 have a B reader.

12 CHAIR MARKOWITZ: Oh yes, yes. This 

13 is too restrictive in that sense because most people 

14 aren't going to people who are B readers. Most 

15 B readers are radiologists. They're not primary 

16 care doctors, or pulmonary specialists.

17 And if you send their X-ray over to 

18 Methodist Hospital in Oak Ridge, or Baptist over 

19 in Paducah there's no B reader in sight. So yes, 

20 in that sense in particular it's different.

21 And then the other thing in the current 

22 guidelines is lung biopsy, and obviously former 
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1 worker program isn't looking at a lung biopsy. 

2 They don't do that as part of a screening program. 

3 Any other comments at this moment? 

4 Okay, so just moving on FWP for pleural disease. 

5 I'm sorry, go back to the previous slide. For 

6 pleural disease due to asbestos.

7 What we require in the former worker 

8 program is a history of exposure to asbestos or 

9 a job title which we expect has exposure to 

10 asbestos.

11 And again, a B reading notation of the 

12 presence of unilateral or bilateral pleural 

13 thickening consistent with pneumoconiosis. 

14 Pneumoconiosis just means dust disease of the lung.

15 So mind you, we're talking about an 

16 expert looking at films, just films for 

17 occupational lung diseases.

18 And it's most likely that if that person 

19 sees a single pleural plaque on a side where they 

20 also see rib fractures they're probably not going 

21 to call that a pleural thickening consistent with 

22 pneumoconiosis.
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1 So embedded in this process is an issue 

2 that the current program is more explicit about 

3 which is this issue of pleural thickening due to 

4 trauma or surgery. That's how that's dealt with. 

5 So if we could go to the next slide.

6 So, the next series of slides just is 

7 proposed language subject to change of course. 

8 It's a first draft about ways in which defining 

9 these entities, the kinds of evidence they're based 

10 on what would be helpful to the process.

11 The way I think about them is maybe --

12 some of these criteria may be within the reach of 

13 the claims examiner. They would certainly be in 

14 the reach of many of the treating physicians. 

15 And this kind of specificity should 

16 certainly be helpful to the CMCs in making decisions 

17 about who has and doesn't have any of these 

18 entities.

19 And so that's what -- it's not supposed 

20 that a claims examiner will necessarily be able 

21 to understand and apply all of these criteria by 

22 way of their background. But to some extent they 
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1 probably could.

2 But in any case the intent is to give 

3 some greater specificity.

4 And so for asbestosis there are three 

5 slides that mimic the current procedure. One is 

6 the radiography. The other is the lung biopsy, 

7 et cetera.

8 But the first one is obviously history 

9 of asbestos exposure. We dealt with that in our 

10 previous recommendations so I'm not going to focus 

11 on that.

12 Remember we went over 30 days for 

13 mesothelioma, 250 days for the other entities. 

14 And then we sent out various job titles or the like 

15 to address exposure.

16 But on the disease side what we see is 

17 the chest X-ray or the CT scan which is the presence 

18 of bilateral diffuse interstitial fibrosis which 

19 affects any combination of the mid and lower lung 

20 zones. And that's what asbestosis is.

21 And that definition, you can look at 

22 a chest X-ray and identify whether the person has 
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1 it or not, or the CT scan.

2 And that's in fact what the B reader 

3 is doing. But it's also what the radiologist is 

4 doing and what the pulmonary specialist is doing 

5 in looking. And for that matter even the primary 

6 care doc should be able to do this if they have 

7 some experience in reading films.

8 They may not call it asbestosis, but 

9 they should be able to -- the definition should 

10 be able to be used in looking at the X-ray report 

11 and seeing whether it's bilateral, is it only in 

12 the upper zones which wouldn't be asbestosis, and 

13 is it a diffuse process as opposed to a specific 

14 scar in the mid left lung.

15 And then if the ILO score is used, and 

16 this is the appropriate definition, it's not 

17 expected that the ILO score is going to be used, 

18 but it should be in there as a guideline. Question, 

19 comment?

20 MEMBER CASSANO: Tori Cassano. I 

21 think the ILO scoring can only be used on B readings.

22 I think it should just be changed if 
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1 a B read chest X-ray is used then ILO scoring 

2 upgraded in one, zero, just, you know, s, t, or 

3 u, or passing for clarity.

4 Because should the ILO scoring on a CT 

5 scan or a regular chest X-ray.

6 CHAIR MARKOWITZ: Okay, so you're 

7 saying if a B reading is performed rather than if 

8 ILO scoring --

9 MEMBER CASSANO: Yes. If the B 

10 reading is performed then ILO scoring greater than 

11 one dash zero adds to your, you know, opacity.

12 CHAIR MARKOWITZ: Right. I changed it 

13 in my version. I mean, I'm not a B reader, but 

14 I will use the ILO scoring. So, that's a little 

15 odd, but we can address that.

16 Other comments? Next slide. So this 

17 mimics current language which is the second 

18 diagnostic criteria is what comes out of the FWP 

19 program which we went over before is very similar 

20 to what the previous slide showed.

21 The next slide is -- here this addresses 

22 pathology.
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1 Now, most people who have scarring in 

2 the lung tissue don't come to biopsy. So this, 

3 I'm showing the current program and the future is 

4 going to be quite uncommon.

5 But sometimes if a person has severe 

6 fibrosis scarring, or if it's progressed very 

7 quickly which usually asbestosis doesn't then they 

8 may come to biopsy to see if they have something 

9 that can be treated.

10 So to be complete we need a criterion 

11 for that. And it's a simple definition which is 

12 when you look at cells what you see is a diffuse 

13 interstitial process in the lung.

14 I should say that there are -- the 

15 pathologists argue about some other things which 

16 mainly center on whether they see asbestosis fibers 

17 or asbestosis bodies and how much of that do you 

18 need.

19 But there's general agreement on at 

20 least the histologic evidence when you look at cells 

21 under a microscope that there needs to be a diffuse 

22 interstitial process, scarring process seen. So 
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1 that's what is here.

2 If you could look to the next slide. 

3 Here we favor a history of asbestos exposure. 

4 We identify exposure. 

5 But actually when you have lung tissue 

6 you have the opportunity on asbestos to actually 

7 look at whether there are fibers or not.

8 Just parenthetically, this is a 

9 complicated subject because some fibers stick 

10 around and some fibers don't.

11 Mind you, most people with asbestosis 

12 are 20 or 30 years from their initial exposure to 

13 asbestos.

14 One type of asbestos, the most common 

15 type tends not to concentrate in the lung but to 

16 move onto the pleura and elsewhere.

17 So these are kind of complicated 

18 topics.

19 But if there is tissue and it can be 

20 used to support a claim then you can document 

21 exposure, meaning if you're not sure a person has 

22 a history of asbestos exposure then you can use 
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1 tissue burden of either fibers or asbestos bodies 

2 to identify the exposure.

3 But the history comes first. The 

4 history of asbestos exposure is sufficient. And 

5 we should probably say this actually that it is 

6 recognized as being sufficient to relate the 

7 finding of diffuse scarring for the diagnosis of 

8 asbestosis, but that in the absence of a history 

9 that exposure can be documented through finding 

10 of fibers or asbestos bodies.

11 Now, what you're looking at here on the 

12 slide says consistent with excessive asbestos 

13 exposure. John Dement wrote in and suggested that 

14 phrase consistent with excessive asbestos exposure 

15 be replaced by compatible with asbestosis.

16 Because the examining laboratories 

17 vary one to the next. And what one considers 

18 excessive is different from what others consider 

19 excessive. So he's just suggesting and I think 

20 he's right that we should simply say that they find 

21 the concentrations of asbestos fibers or asbestos 

22 bodies compatible with asbestosis by that very same 
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1 examining laboratory. 

2 That lab has evidence. Relatively few 

3 labs do this counting of fibers and so they would 

4 have experience with asbestos related disease.

5 So, any comments or questions on that?

6 MEMBER CASSANO: I have just one 

7 comment. The only fear I have with this is that 

8 a CE in the absence of history of asbestos exposure 

9 is going to tell somebody -- that they cannot accept 

10 the finding or something.

11 CHAIR MARKOWITZ: Right. So --

12 MEMBER CASSANO: We're not even saying 

13 go get a chest X-ray, or go get a CT scan or whatever. 

14 The only alternative to the word here of asbestos 

15 exposure is a chest X-ray or CT scan according to 

16 what we're putting here is a lung biopsy.

17 CHAIR MARKOWITZ: Right, right. So I 

18 think it should be clear that the history is 

19 sufficient.

20 I don't think -- I find it hard to 

21 believe that claims examiners can direct the 

22 medical care of each individual. 
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1 But I see what you're saying. They 

2 could not fully appreciate what it means to have 

3 a lung biopsy. 

4 So I think I should change the language 

5 here to make it clear that the history of asbestos 

6 exposure is sufficient, and that in the absence 

7 of that history.

8 Well, you know, if you really don't have 

9 a history of exposure, even if you have diffuse 

10 interstitial fibrosis it's hard to prove your case.

11 MEMBER CASSANO: I agree.

12 CHAIR MARKOWITZ: By the way, let me 

13 --

14 (Simultaneous speaking)

15 MEMBER CASSANO: -- exposure is a 

16 history of disease that finds it before, correct?

17 (Simultaneous speaking)

18 MEMBER CASSANO: -- working at a job 

19 it's presumed to have had asbestos exposure, 

20 correct?

21 CHAIR MARKOWITZ: My thinking is that 

22 if they accept our expanded definition of asbestos 
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1 exposure that we recommended previously that that 

2 should capture everybody who's got exposure.

3 MEMBER CASSANO: Okay.

4 CHAIR MARKOWITZ: Mind you, asbestosis 

5 in particular takes a fair amount of exposure. 

6 It's not occult exposure that causes asbestosis. 

7 Mesothelioma, but not asbestosis.

8 MEMBER CASSANO: Right.

9 CHAIR MARKOWITZ: Yes. But it should 

10 be clear. Yes, other comments?

11 MEMBER BODEN: Yes, this is Les. 

12 First of all, I think that changing excessive 

13 asbestos exposure in the way that you suggested 

14 is a very sound idea.

15 Also, I'm just wondering whether when 

16 we talk about a history of asbestosis exposure that 

17 in -- if we're writing a presumption that someplace 

18 in the presumption we refer specifically to what 

19 we mean by that.

20 CHAIR MARKOWITZ: The history?

21 MEMBER BODEN: Yes.

22 CHAIR MARKOWITZ: Yes.
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1 MEMBER BODEN: And presumably the 

2 history also includes -- I'm trying to remember 

3 how it was worded before because I thought the 

4 wording was good, that it was a history, or having 

5 a job or task that was considered to be exposure, 

6 to have exposure to asbestos.

7 (Simultaneous speaking)

8 MEMBER CASSANO: So you could actually 

9 have two presumptions. You could have a 

10 presumption of exposure and we could list it as 

11 a presumption of exposure which is sort of what 

12 we did when we talked about history of asbestos 

13 exposure.

14 We might actually call it a presumption 

15 of exposure. It should be presumed that a person 

16 is exposed to asbestos if they have worked in 

17 whatever facilities, or done whatever jobs over 

18 a period of seven years for asbestosis.

19 MEMBER BODEN: Right.

20 CHAIR MARKOWITZ: Well, yes, in April 

21 we approved the exposure presumptions. 

22 MEMBER BODEN: We just want to make 
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1 sure we incorporate it in this document.

2 MEMBER CASSANO: Maybe we should say 

3 an alternative for history, and we tell that history 

4 of exposure here we should say as per whatever the 

5 document is that contains our previous 

6 recommendation on how you define history of 

7 asbestos exposure.

8 CHAIR MARKOWITZ: Right. That's 

9 good. In fact, we might even repeat it here. I 

10 have a slide with -- in case they don't accept our 

11 previous recommendations, right?

12 (Laughter)

13 CHAIR MARKOWITZ: And that could 

14 happen, that could happen.

15 MEMBER BODEN: Right, in which case you 

16 can't refer back to it.

17 CHAIR MARKOWITZ: Exactly. Rejected 

18 recommendations. Okay, fine.

19 MEMBER WHITLEY: Garry here. What 

20 they're going to do -- a claims examiner going to 

21 do automatically is they're going to go to the SEM 

22 database. That's where they're going to get their 
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1 history of exposure.

2 So if you were a pipefitter, asbestos 

3 worker, that stuff, you're fine. If you look at 

4 the buildings that says they contain asbestos, they 

5 show all of them in the whole plant. 

6 You go down to a supervisor or even 

7 though he worked in that building with a crew every 

8 day, if you go down to a supervisor and look up 

9 to see if he was exposed to asbestos even though 

10 he's in that building it will say no. No, no.

11 Claims examiners are going to use the 

12 SEM database to help you, but they're also going 

13 to use it against you if you're not listed in it.

14 CHAIR MARKOWITZ: Yes, I'm just trying 

15 to bring up our recommendation on asbestos 

16 exposure. 

17 This is from our recommendation from 

18 April which is on the exposure side. We

19 recommended at least 250 days of exposure, job 

20 title, on the presumption side any maintenance or 

21 construction worker. And this would be exposure 

22 prior to 2005 with a minimum of 15 years.
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1 Anybody who doesn't make that 

2 presumption would be individually evaluated. 

3 So I don't know, Garry, if that 

4 addresses the scenario that you raised here or not. 

5 But that was our discussion of documenting 

6 asbestos exposure previously, at least for 

7 asbestosis.

8 MEMBER WHITLEY: Garry here. I think 

9 the only way you can do it properly because you're 

10 going to be fighting against the SEM database. 

11 So, if you're not listed there you're going to have 

12 to prove it otherwise.

13 CHAIR MARKOWITZ: Right. You know, 

14 again, for asbestosis you need a fair amount of

15 exposure to asbestos. So it should be provable.

16 And I'm not talking about industrial 

17 hygiene data. I'm talking about description of 

18 tasks, description of work that a person did, job 

19 title. In this one we're okay.

20 So let's move onto the next slide.

21 MEMBER SILVER: Before we move on, this 

22 is Ken. The lung tissue burden can also be 
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1 demonstrated on autopsy tissue.

2 CHAIR MARKOWITZ: Yes. It's not 

3 specific here. It could be a biopsy or autopsy.

4 MEMBER SILVER: Thank you.

5 CHAIR MARKOWITZ: Next slide. Here's 

6 for asbestos pleural disease, a history of asbestos 

7 exposure. Again that harkens back to our previous 

8 recommendation.

9 And then finding on chest X-ray or CT 

10 a unilateral or bilateral pleural thickening, or 

11 plaques that's not readily explained by another

12 cause.

13 And that should be sufficient for most 

14 doctors to be able to make a decision as to whether 

15 it's asbestos related pleural thickening or not. 

16

17 It gets tricky when a person has had 

18 heart surgery and you see diffuse or relatively 

19 extensive pleural thickening at the bottom of the 

20 lung on one side, and was that asbestos exposure 

21 or was that the surgery.

22 And doctors may disagree, but no amount 
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1 of definition is going to resolve that. That's 

2 just judgment.

3 MEMBER CASSANO: Going back to the 

4 prior slide. You don't have to go back, but just 

5 thinking about the prior slide -- why can't somebody 

6 -- if somebody has fibrosis but no history of 

7 asbestos exposure and they have pleural plaques 

8 with no other explanation for them.

9 I mean I have always been told and have 

10 always considered pulmonary fibrosis and pleural 

11 plaque as sort of capping -- or asbestosis.

12 So why can't we use the presence of 

13 pleural plaque with the fibrosis as definitive of 

14 asbestosis?

15 I know there's some other things that 

16 can do that, but not a whole heck of a lot.

17 CHAIR MARKOWITZ: Yes. That's a good 

18 idea. Let me -- I will draft some language that 

19 addresses that.

20 Again, it takes a lot of asbestos 

21 exposure to get asbestosis.

22 MEMBER CASSANO: Yes.
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1 CHAIR MARKOWITZ: And so it's unlikely 

2 to be occult, you know, or not noticed. But if 

3 a person really isn't in the right job title, 

4 doesn't report it, but has pleural plaques and 

5 interstitial fibrosis then I would probably lean 

6 towards asbestosis as you say.

7 So let me add some language to reflect 

8 that. Which we don't have to draft here because 

9 we're just working this up, but when we meet. 

10 I'll circulate another version of this 

11 before the meeting in October or November.

12 MEMBER CASSANO: I could give you some 

13 language, but you probably will be better at it 

14 than I.

15 CHAIR MARKOWITZ: I mean, I'll draft 

16 it and everybody can look at it and chime in. Or 

17 if you want to send over language that's fine too. 

18 Whichever. That works. Other comments? 

19 Okay, so let's go -- let's see, we're 

20 at pleural disease. Any comments on this 

21 particular slide? You notice we're not 

22 quantifying how much pleural thickening. We are 
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1 leaving it open as whether it's one side or both 

2 sides. And I think that's appropriate to not get 

3 any more specific than this.

4 MEMBER VLIEGER: This is Faye. I have 

5 a question and it comes from the fact that I have 

6 a recent claimant that went through the IH in D.C. 

7 who we interviewed at our meeting there.

8 And this person was an asbestos 

9 insulator, but not for 15 years. He was there for 

10 17, 18 months, but he was an asbestos insulator.

11 During the time period where they 

12 weren't required to wear masks or alternative air. 

13 And the IH said that his exposures would 

14 have been incidental and infrequent and thereby 

15 sending it to a CMC who of course was not going 

16 to disagree with the IH.

17 And of course the answer came back that 

18 his lung condition, not asbestos disease, but his 

19 lung condition was not caused or contributed to 

20 his asbestos exposure. 

21 How are we going to get away from this 

22 being sent to the IH who presumes, or has to presume 
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1 that the person worked or was exposed to asbestos? 

2 I don't know how we're going to get away from that 

3 part of the law that says you have to prove exposure. 

4 You know, you have to prove exposure.

5 CHAIR MARKOWITZ: This is Steven. 

6 Again, if our prior recommendation is accepted for 

7 that outcome, either pleural thickening, or pleural 

8 plaques, or asbestosis, if a person has 250 days 

9 of exposure certainly that person was an insulator, 

10 so they're like number one on the job title list. 

11 If they had 18 months of work then they 

12 would make it as a matter of presumption.

13 MEMBER VLIEGER: You would think that, 

14 but the other thing that of course they threw out 

15 there again was, well, you know, smokers have this 

16 happen to them too, therefore that in a short period 

17 of work this couldn't have happened.

18 I don't know how we can get away from 

19 an IH and a CMC doing the same song and dance that 

20 they haven't already done here. If it gets sent 

21 to a CMC.

22 CHAIR MARKOWITZ: Well, there's no 
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1 amount of guidelines that we can recommend that 

2 would get around the problem of misapplication or 

3 incorrect decisions.

4 Although, another recommendation that 

5 we're going to take a look at, there are a number 

6 of CMC decisions or recommendations or opinions 

7 and then look at their level of accuracy.

8 MEMBER VLIEGER: Okay, well I'm just 

9 trying to figure a way in this wording that it 

10 doesn't have to go out to an outside source. So 

11 far these are still recommendations I understand, 

12 but somewhere in the wording it's like well, I know 

13 this is presumptive, but we haven't said don't do 

14 the other things. 

15 They still always have the option of 

16 doing the other things.

17 CHAIR MARKOWITZ: Yes, but we've also 

18 in other conversations have been circumspect about 

19 the claims examiner making decisions that they're 

20 not really qualified to make.

21 But you know, the idea of adding more 

22 specific diagnostic criteria would also help the 
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1 treating physician because there are guideposts 

2 the treating physician could -- this is how the 

3 program looks at evidence for these entities. It's 

4 now more specific than it was previously.

5 And then they in their letter if it's 

6 true or cite that, okay, my decision on asbestosis 

7 is based on review of the chest X-ray which showed 

8 bilateral and diffuse interstitial fibrosis in mid 

9 and lower lung zones.

10 And the CE then should be able to match 

11 up what the treating physician has said with the 

12 evidence that we're recommending and say yes, 

13 that's the case. No need to send to the IH or CMC. 

14 We're done.

15 I think the added specificity would 

16 allow both the treating physician get a better sense 

17 of what's required, but also allow the CE to make 

18 a decision and not do what you're worried about 

19 which is sending it to an IH or CMC who's going 

20 to make the wrong decision. Does that make sense?

21 MEMBER VLIEGER: It does. I guess 

22 part of my frustration is we work on these things 
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1 and it's all logical and good, and then back in 

2 the trenches we're still dealing with the idiocy.

3 CHAIR MARKOWITZ: Well, you know, the 

4 application, should they accept these 

5 recommendations, the application, we should get 

6 around to figuring out how to help monitor the 

7 application of these things so that they're applied 

8 appropriately.

9 MEMBER SILVER: Ken Silver here. We 

10 might start generating a list of issues that we 

11 want to remark upon with great emphasis in our 

12 accompanying rationale.

13 The pathogenicity of plaques in 

14 asbestos, what smoking does and does not contribute 

15 to lung cancer and fibrosis as I understand it. 

16 And maybe the phenomenon of short-term 

17 high-level exposure causing chronic asbestosis 

18 years later.

19 I think findings back from the late 

20 seventies, early eighties of lung bumps in an 

21 amosite plant you know, still cited.

22 So if you put a big emphasis on that 
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1 in the rationale at least advocates can say look, 

2 we told you so.

3 CHAIR MARKOWITZ: Also the rationale 

4 would be accessible to the physicians who are part 

5 of the process meaning the treating physician and 

6 the CMC. So it would be useful.

7 Yes, I haven't transferred the 

8 rationale but when I do and send it around, if it 

9 doesn't have those points, Ken, throw them in there.

10 MEMBER SILVER: Okay.

11 CHAIR MARKOWITZ: Other comments on 

12 this? So let me see. It's 2:15. Do people want 

13 to take a five-minute break? I have three or four 

14 more slides. But if people want to take a break 

15 we can.

16 MEMBER BODEN: I'm okay going on, but 

17 maybe other people --

18 MEMBER CASSANO: I'm okay.

19 CHAIR MARKOWITZ: Okay. So let's 

20 continue then. Okay, next slide then.

21 So this is for pleural effusion. This 

22 is a very uncommon condition and I'm a little 
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1 surprised actually to see it in the language of 

2 the manual.

3 But there's no definitive way of making 

4 the diagnosis. You need the history of exposure 

5 and then you need an unexplained pleural effusion.

6 Even in such a population 9 times out 

7 of 10 that pleural effusion is going to be caused 

8 by something else like heart failure, or 

9 inflammation, or very common causes.

10 So this definition should be 

11 sufficient. I don't think the claims examiner is 

12 really likely to be able to make this call, but 

13 treating physician and the CMC certainly could.

14 Because if a person has inflammation 

15 infection or a heart failure that should be pretty 

16 apparent from the medical record or from examining 

17 the person.

18 More than a dozen claims for this I'd 

19 be surprised. It's a very unusual condition 

20 especially these days.

21 Any comments on this? Okay. So let's 

22 go on to the next slide.
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1 Okay, so this is important because 

2 these are common outcomes. And these are all the 

3 cancers that are recognized as being related to 

4 asbestos. 

5 So how do we want the claims examiner 

6 to look at a case. Generally they are looking 

7 probably at present and they should look for 

8 pathology reports because there's either a biopsy, 

9 or autopsy, or surgery in which they've taken a 

10 whole bunch of tissue.

11 And it says on the pathology lung cancer 

12 it says mesothelioma or cancer of the ovary or 

13 larynx. It won't say asbestos, but that's not 

14 needed for this process. 

15 The history of exposure comes from 

16 different kind of evidence.

17 There are some instances, particularly 

18 in older people, who aren't well enough to undergo 

19 a biopsy, or surgery, or there's no point in doing 

20 surgery.

21 They may not come to autopsy. And it 

22 doesn't happen very often but it does happen in 
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1 which case the physician is left trying to make 

2 the best judgment without having tissue whether 

3 the person has a cancer and what the cancer is cancer 

4 of.

5 And I think the claims process -- I'm 

6 not sure how it works now in terms of these claims, 

7 but it has to recognize this group of presumed 

8 diagnosis. 

9 And this is not something that the 

10 claims examiner would do. It is something that 

11 the physician would do.

12 And that is just by way of example if 

13 a person comes in, they've lost weight, they're 

14 short of breath, they have fluid in their chest 

15 and they have a big mass coming from the pleura 

16 then chances are that's mesothelioma.

17 Or they have a big mass in the lung and 

18 no one's going to do surgery, it's too risky to 

19 do biopsy, that's going to be a lung cancer with 

20 90 percent certainty.

21 So this group should be specified in 

22 the claims examination process.
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1 Or a death certificate that mentions 

2 one of these entities somewhere on the death 

3 certificate. Usually not very far down because 

4 at least for mesothelioma, cancer of the lung, 

5 cancer of the ovary people usually die of those 

6 entities. 

7 MEMBER CASSANO: Do we need to say 

8 something about with or without looking for a 

9 history of smoking? Just because I see a lot of 

10 times that the person smoked, they've got lung 

11 cancer, it's due to smoking, it's not due to 

12 asbestos.

13 CHAIR MARKOWITZ: Yes, we should put 

14 that in the rationale. Rachel has told us that 

15 the process doesn't recognize or take into account 

16 smoking, but CMCs presumably read this.

17 We're not quite sure whether they 

18 follow everything in the program. And the treating 

19 physicians wouldn't be downed by this either.

20 So in the rationale it should be 

21 explicit. Smoking does not contribute to 

22 mesothelioma. Smoking does to lung cancer, but 
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1 in a way that exacerbates the asbestos exposure, 

2 et cetera. We'll put that in the rationale.

3 MEMBER CASSANO: Okay, thanks.

4 CHAIR MARKOWITZ: So my question 

5 overall about these, is this added level of 

6 specificity and pointing out the relative utility 

7 of different ways of diagnosing or sources of 

8 evidence, would this represent an improvement over 

9 the current process.

10 MEMBER CASSANO: I think if they enlist 

11 the doc -- I mean, the doctor would be able to 

12 determine that.

13 MEMBER VLIEGER: I'm sorry, are we on 

14 slide 20? This is Faye.

15 (Simultaneous speaking)

16 MEMBER VLIEGER: -- on the WebEx.

17 CHAIR MARKOWITZ: Yes, we're on 20. 

18 We're on the cancer list. Yes.

19 MEMBER VLIEGER: So as far as all of 

20 this it looks pretty much normal the way it runs 

21 right now. I don't see any problem with it.

22 We don't usually have pathology. We 
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1 could make a comment on it on the death certificate. 

2 But there again we run into the same problem on 

3 death certificates as we do with diagnostic 

4 paperwork from the physicians here. Unless it's 

5 been heavily charted and documented they're not 

6 going to make any asbestos diagnosis on a death 

7 certificate unless there's been an autopsy and 

8 those are not common.

9 CHAIR MARKOWITZ: So Faye, does that 

10 mean if a person has a documented history of 

11 asbestos exposure it's recognized by the claims 

12 process, but then has lung cancer on the death 

13 certificate but it doesn't say anything about 

14 asbestos related lung cancer, that that wouldn't 

15 necessarily be accepted?

16 MEMBER VLIEGER: That's correct. 

17 That's correct. I have a case right now where the 

18 person was in the hospital, had recently been 

19 diagnosed with multiple myeloma, had one chemo 

20 treatment, went to the hospital with a blood clot 

21 and the death certificate says he died from a blood 

22 clot. Does not mention the mesothelioma. So the 
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1 death certificate is not useful at all unless it's 

2 specific.

3 Even if it's secondary or tertiary 

4 cause, it has to be on the death certificate. 

5 But we have the physicians at the 

6 largest hospital in the area here for the Tri-Cities 

7 that they only put the most immediate cause of death 

8 and then to try and get a death certificate amended 

9 they refuse. So you have to go through the coroner 

10 and that can take up to a year because the coroner 

11 is busy with the most recently dead, not the more 

12 longer dead.

13 And in the two cases I had to have death 

14 certificates amended it took more than a year.

15 CHAIR MARKOWITZ: Right. Wow. Well, 

16 the problem is not DOL or the program, the problem 

17 is the healthcare system that doesn't get the death 

18 certificate right.

19 MEMBER VLIEGER: Well, yes, that's the 

20 problem. What I see more of a problem is that DOL 

21 has the physicians running scared because the 

22 program guidelines are not clear.
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1 And there are no pamphlets out to the 

2 doctors that say this is what I accept for 

3 mesothelioma. This is what we accept for COPD. 

4 This is what we accept for asthma.

5 The department has failed to do that 

6 probably to their own benefit. So the doctors take 

7 two steps back for a couple of reasons.

8 First of all they did not go to school 

9 to play legal beagle.

10 Secondly, the state labor and 

11 industry's claims system has all of them running 

12 scared that they're going to have to spend a day 

13 of clinic time in depositions.

14 So the Department of Labor program 

15 because it doesn't specify and it doesn't provide 

16 an easy way for them to understand what's going

17 on, they think it's like every other worker 

18 compensation program which is going to require them 

19 to not have office time for patients, but to have 

20 to do legal maneuvers.

21 So, I think the department could do some 

22 things to improve this, but right now no, they don't 
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1 make it easy.

2 And by the same token as when we look 

3 on the CMC side of things the CMCs are barely vetted. 

4 And as you saw in the decisions we reviewed don't 

5 even follow program guidelines because there's no 

6 clear program guidelines given to them either.

7 CHAIR MARKOWITZ: If we can develop 

8 some consensus diagnostic criteria I think it will 

9 be useful by all elements, the treating physicians, 

10 the CMCs, the claims examiners. 

11 This should provide some greater basis 

12 for making decisions and more uniform as well.

13 Doctors not wanting to participate in 

14 legal processes, compensation systems and the like, 

15 that is a huge problem everywhere in relation to 

16 workers compensation, any federal compensation 

17 program, tort litigation, you name it. It's just 

18 universal.

19 You lecture first-year medical 

20 students and mention lawyers and they boo you. 

21 It's a problem.

22 MEMBER CASSANO: Steve, tangential to 
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1 this. A recommendation that we could make is that 

2 in these areas where there's large numbers of 

3 claimants, et cetera, that there should be some 

4 program, it doesn't have to be -- somebody should 

5 be going to the hospitals and maybe doing grand 

6 rounds, or even a lunch and learn if you will on 

7 some of these issues for the local physicians inside 

8 -- how to fix it.

9 It's obviously outside of our purview, 

10 but maybe it's not. Maybe it's something we could 

11 do when we do one of these meetings. Have a 

12 two-hour session for local docs in a meeting to 

13 talk about some of these issues.

14 CHAIR MARKOWITZ: The Department of 

15 Labor --

16 MEMBER CASSANO: I don't know if that's 

17 in our purview or not, but it should be done by 

18 somebody.

19 CHAIR MARKOWITZ: The Department of 

20 Labor has a joint task force with NIOSH and with 

21 DOE. I think it was the Ombudsman's Office to do 

22 these public meetings to discuss compensation 
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1 program, former worker program and other things.

2 And conceivably they could engage the 

3 former worker programs to do this kind of medical 

4 education.

5 MEMBER CASSANO: Yes.

6 CHAIR MARKOWITZ: Part of the problem 

7 is frankly we don't think the doctors would show 

8 up because they're not all that interested.

9 MEMBER CASSANO: Well, unless somebody 

10 gave them CME credits. Then they would.

11 MEMBER SILVER: This is Ken Silver. 

12 Going back to this slide. Faye if this were adopted 

13 the connecting word is "or." Would you have been 

14 able to use number 2 in your mesothelioma case where 

15 the death certificate said blood clot? Would you 

16 be able to win the claim based on number 2 on this 

17 slide?

18 MEMBER VLIEGER: If there's clinical 

19 evidence then they would be eligible for Part E. 

20 But under Part E the death certificate wouldn't 

21 match the clinical. 

22 And so in order to qualify for survivor 
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1 benefits the death certificate, the reason they 

2 died has to be a covered condition or a later covered 

3 condition.

4 And the death certificate would not 

5 match in this case and therefore there wouldn't 

6 be no survivor benefit.

7 The only caveat to that is if there was 

8 a claim in place at the time of death and the 

9 department was dawdling and the person died, then 

10 the Russero ruling would come into play with the 

11 survivor claim where they would be eligible for 

12 benefits. 

13 But that only applies if there is a 

14 claim in process that the Department of Labor has

15 administratively dawdled on. And then Russero 

16 would come in play because the family would be 

17 eligible for the claims that would have been 

18 eligible while the claimant was alive.

19 In most cases when you're dealing with 

20 a claim filed posthumously and the death 

21 certificate does not match for a condition covered 

22 under Part E, and that's what asbestos would be, 
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1 then you would either have to get an autopsy done, 

2 or you would have to have your death certificate 

3 changed.

4 And both of those are similar to having 

5 baby elephants.

6 MEMBER SILVER: I believe diagnostic 

7 criteria would work for causation for like a wage 

8 loss claim, or coverage in medical benefits, but 

9 then for survivors claims someone would have to 

10 administratively extend our logic and override the 

11 death certificate requirement.

12 MEMBER VLIEGER: Exactly.

13 MEMBER SILVER: Okay.

14 CHAIR MARKOWITZ: This language we're 

15 looking at actually would provide the basis for 

16 that, a rational medical basis for that decision.

17 MEMBER SILVER: Right.

18 MEMBER VLIEGER: Yes. If there's 

19 enough medical evidence that it's pretty clear-cut 

20 the coroner doesn't have any problem doing the 

21 change. But we have to have the documented 

22 medical.
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1 I haven't had to use an autopsy result 

2 to change a death certificate. I have one pending 

3 right now and I don't know what the outcome's going 

4 to be.

5 MEMBER CASSANO: So if it requires a 

6 medical opinion working with a -- if I'm 

7 understanding this right it works like the ABD I 

8 work with it would be a medical opinion that states 

9 that if it doesn't at the cause of death then the 

10 mesothelioma despite what -- that the contributory 

11 cause of death was mesothelioma despite what is 

12 on the death certificate. Am I correct, Faye?

13 MEMBER VLIEGER: That or enough 

14 evidence that they were diagnosed with it prior 

15 to their death. And as long as it was being 

16 actively treated it should have been listed on the 

17 death certificate.

18 MEMBER CASSANO: If it wasn't on the 

19 death certificate then -- we may be able to come 

20 up with some language that basically says if there 

21 is current evidence yada yada yada at the death 

22 certificate that's not included as a contributory 
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1 -- secondary or contributory cause then the claims 

2 examiner should forward it to the CMC for a 

3 decision.

4 I think that would work. And then we'd 

5 give the CMC guidance on that.

6 MEMBER BODEN: Can I just ask a 

7 question about this last slide just to clarify. 

8 So these are diagnostic criteria for example for 

9 cancer of the lung, not necessarily asbestos 

10 related cancer of the lung.

11 CHAIR MARKOWITZ: Right.

12 MEMBER BODEN: Right? Okay. So if 

13 then one wanted to tie it to occupation one would 

14 need additional exposure evidence.

15 CHAIR MARKOWITZ: Right.

16 MEMBER BODEN: Yes? Okay. Just to 

17 clarify for me. I wasn't sure I understood that 

18 right.

19 CHAIR MARKOWITZ: Right. And for the 

20 other conditions in every instance we mentioned 

21 the history of asbestos exposure because they were 

22 asbestos specific conditions like asbestosis, 
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1 pleural disease or the like.

2 But here I could have added a slide to 

3 say related to asbestos requires fulfilment of the 

4 criteria plus a history of exposure.

5 MEMBER CASSANO: Well, what about 

6 mesothelioma just for relevance.

7 CHAIR MARKOWITZ: You know, actually 

8 in our recommendation for mesothelioma we said 30 

9 days and a minimum of the right job title or a 

10 history of exposure or the like.

11 So there should be some documentation 

12 of the asbestos exposure. But it usually doesn't 

13 require much.

14 MEMBER CASSANO: Okay.

15 CHAIR MARKOWITZ: Tori, getting back 

16 to your point, your suggested language, if you want 

17 to draft something and send it to me.

18 MEMBER CASSANO: I believe that's about 

19 what I was going to say. Oh it was about pleural 

20 plaque plus sarcoidosis.

21 CHAIR MARKOWITZ: No, this was about 

22 the issue that Faye was raising about the use of 
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1 clinical information --

2 MEMBER CASSANO: Okay, so --

3 CHAIR MARKOWITZ: -- for a physician 

4 to opine on a cause of death when the death 

5 certificate doesn't mention.

6 MEMBER CASSANO: Okay. I will do 

7 that.

8 CHAIR MARKOWITZ: Yes. I mean, it's 

9 a bit of a tough hurdle because you're seen as sort 

10 of second guessing the doctor who actually attended 

11 the death and filled out the death certificate, 

12 but it's worth putting in there I think.

13 MEMBER CASSANO: You know, I see a lot 

14 all the time it's cause of death heart attack. 

15 Well, the heart attack is secondary to the fact 

16 that the person had pleural -- or whatever, but 

17 the final event is always the heart stops.

18 So, I don't think it's difficult and 

19 I think once it's explained, the claims examiners 

20 and to the agency that it could be -- I don't think 

21 it's going to be difficult to make it happen.

22 CHAIR MARKOWITZ: The other thing of 
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1 course is that frequently the physician filling 

2 out the death certificate is the person who happens 

3 to be in the hospital when the person died. And 

4 they're typically being a resident.

5 So they may be covering for somebody 

6 else and may not even know the patient or what the 

7 patient's illnesses are. 

8 So that's not apparent to the outside 

9 world, but it generally happens.

10 MEMBER CASSANO: Yes. Okay, so I can 

11 do that.

12 CHAIR MARKOWITZ: Okay, so if we're 

13 done with asbestos let's move onto the last slide. 

14 And here I'm not expressing an opinion, 

15 I'm just raising issues. I went through the claims 

16 -- the procedure manual for other conditions that 

17 it mentions.

18 It does mention at the end of chapter 

19 2 or whatever the new chapter is Parkinsonism 

20 without saying much about it other than treating 

21 the various synonyms for Parkinsonism meaning 

22 Parkinson's disease, Parkinson syndrome, 
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1 Parkinsonism to treat them as the same.

2 It doesn't weigh in in terms of 

3 exposures.

4 And then there's an exhibit which is 

5 an attachment or an appendix to the manual which 

6 lists -- which is an old thing I think from the 

7 beginning of the program which lists a number of 

8 different entities including peripheral

9 neuropathy, damage to the nerves of the arms and 

10 legs caused by a toxin.

11 It also mentions something called toxic 

12 encephalopathy, chronic toxic encephalopathy which 

13 is brain damage due to chronic exposure to certain 

14 toxins such as metals or solvents in particular. 

15 But it doesn't really go into any detail.

16 And then also it just very briefly 

17 mentions chronic kidney disease.

18 I don't know that there are many claims 

19 for these conditions so it's hard -- we can ask 

20 DOL if there are, because if there are not I don't 

21 think there's any rationale for trying to design 

22 presumptions.
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1 MEMBER CASSANO: Well, I just wonder 

2 if the reason there aren't any claims for them is 

3 that people don't know that organic solvents, toxic 

4 encephalopathy or Parkinson's disease. 

5 And the literature is pretty replete 

6 now with both epidemiologic and toxicologic studies 

7 that tend to prove that association.

8 I think the other one might be -- and 

9 again, organic solvents, specifically benzene --

10 I don't know how many of these people were exposed 

11 to benzene, and acute myelogenous leukemia.

12 I don't think we should use how many 

13 claims are there. I mean, I don't want to open 

14 up another can of worms for the agency either, but 

15 people that have diseases that are related to their 

16 work should be compensated.

17 But I don't think we should start with 

18 how many claims. I think we should look at the 

19 form and see what the major toxicants are in the 

20 workplace. And if we see major toxicants that we 

21 know definitively cause disease then those are 

22 easily turned into presumptions.
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1 And I just mentioned the two of them. 

2 There's benzene in AML and Parkinson's and both 

3 manganese -- if there's an extension of manganese, 

4 I don't know if there is.

5 So, primarily two to use.

6 MEMBER VLIEGER: This is Faye. DIAB, 

7 the board that I still chair on though it's gone 

8 kind of dark did a list of diseases most likely 

9 denied by the department. I can resurrect that 

10 list and send it.

11 But of the things that were more 

12 routinely denied was peripheral neuropathy, 

13 Parkinsonism, dementia, chronic encephalopathy, 

14 toxic encephalopathy.

15 So I can resurrect that list. But what 

16 we had done was look at the statistics from the 

17 Department of Labor and look at the things that 

18 were most likely denied.

19 So if you want I can resurrect that and 

20 send it out.

21 CHAIR MARKOWITZ: Sure.

22 MEMBER VLIEGER: All right, thank you.
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1 CHAIR MARKOWITZ: The issue of whether 

2 they should come to presumptions depends on a number 

3 of factors like is there enough information to make 

4 decisions.

5 There may be that a number of these 

6 different conditions, either a high denial rate, 

7 or a fair number of denials, not referring to rate, 

8 that the issue of not lack of presumptions but the 

9 issue is that the SEM is incomplete or inaccurate, 

10 or the claims process doesn't recognize certain 

11 aspects of these diseases.

12 Or if a person has diabetes the 

13 neuropathy is always chalked up to the diabetes 

14 and never to the toxin.

15 That's separate from the issue of 

16 whether there should be presumptions. 

17 So I guess we may need to figure out 

18 what the particular issues for these conditions 

19 are first before deciding whether they're 

20 appropriate to try to elaborate presumptions.

21 MEMBER CASSANO: You mean as far as DOL 

22 is concerned, as far as the exposure is concerned, 
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1 or what?

2 CHAIR MARKOWITZ: Well, it could be 

3 exposure, it could be the diagnostic criteria. 

4 It can be any aspect of the process.

5 MEMBER CASSANO: Okay.

6 CHAIR MARKOWITZ: But that may involve 

7 -- I mean, if we believe that toxic neuropathy might 

8 be an issue that's not -- that there is some 

9 suspicion it isn't being addressed properly then 

10 we could look at a certain number of cases of toxic 

11 neuropathy denied and accepted and see how the 

12 decisions are made and whether we think there's 

13 any room for improvement.

14 And that's what occurred before the 

15 issue of developing presumptions.

16 MEMBER CASSANO: Yes. We could look 

17 at the Parkinson's disease too because I don't know. 

18 I mean, I'm not -- organic solvents have to be 

19 a huge exposure issue in this area. I am assuming 

20 that. I don't know if that's true.

21 Can somebody educate me on that?

22 CHAIR MARKOWITZ: Solvents? 
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1 MEMBER VLIEGER: I'm sorry, is the 

2 question that we're --

3 MEMBER CASSANO: Solvent exposure has 

4 to be there in these facilities. 

5 MEMBER VLIEGER: So I don't know if 

6 anyone goes home and plays with them on purpose. 

7 MEMBER CASSANO: Excuse me?

8 MEMBER VLIEGER: Yes, it would have to 

9 be occupational. Like I said, I don't know of 

10 anybody that goes home and plays with these things 

11 on purpose.

12 MEMBER CASSANO: Yes, I mean people 

13 work on their own cars, they use degreasers, they 

14 ship furniture at home, et cetera. So some of it 

15 can be from home, but usually that's incidental. 

16 It's not chronic low-level or chronic moderate 

17 level.

18 So, I think we need to know how -- I 

19 think looking -- and that's something I guess 

20 Rosie's group and my group could do once we get 

21 past our next meeting is start looking at these 

22 neuropathy and the Parkinson's disease claims and 
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1 see whether the evaluation specifically by the CMC 

2 and/or the industrial hygienist are appropriate.

3 I hate to make more work for Rosie.

4 CHAIR MARKOWITZ: I think that makes 

5 sense. I think we need to understand some of the 

6 issues better with some of these entities before 

7 deciding which recommendations we might make.

8 MEMBER CASSANO: I was only looking at 

9 it from out of these things what is the definitively 

10 proved as a causal. That's all I was looking at. 

11 I wasn't looking at it from the perspective of 

12 the agency.

13 MEMBER SILVER: Kidney disease is 

14 interesting. This is Ken Silver. In that there's 

15 a lot of diabetes out there and there's a lot of 

16 uranium at these sites and many organic chemicals 

17 have been shown to cause various kinds of kidney 

18 damage in animals in particular.

19 And there's evidence of synergistic 

20 effects. 

21 So if the statistics from DOL suggest 

22 that kidney disease looms large, the issue is them 
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1 getting people to take a look at that.

2 MEMBER CASSANO: Well, certainly, yes, 

3 kidney disease and adrenal carcinoma is another 

4 one related to organic solvents. Specifically 

5 CTE.

6 MEMBER SILVER: And we did look at a 

7 claim that was pretty much a slam dunk a few months 

8 ago. It was paid, but -- teasing apart kidney 

9 disease due to diabetes versus uranium exposure.

10 There were two cases at Los Alamos. 

11 Both had happy endings for the claimants. But it's 

12 a very small sample.

13 A much larger n in the DOL system.

14 MEMBER CASSANO: That's part of the 

15 problem with how we look at these cases is that 

16 they're not randomly picked. And I think we saw 

17 that when we went to Seattle.

18 So, I'm not sure if there's some way 

19 to get a list of what's been adjudicated this month 

20 and randomly pick rather than having each district 

21 office pick the ones they want to send to us.

22 Faye, you may want to elaborate on that 
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1 a little bit more based on our meeting in Seattle. 

2 But we'll deal a lot more with that on Tuesday 

3 I think is when we meet, correct?

4 MEMBER VLIEGER: The 27th, isn't that 

5 Monday? 

6 MEMBER CASSANO: The 27th. 

7 CHAIR MARKOWITZ: That's Tuesday, 

8 11:30 a.m. 

9 MEMBER VLIEGER: Yes, Tuesday. This 

10 seems, and I don't know how random random is when 

11 you're doing a specific district office and we're 

12 looking at claims from that district office.

13 It just seems that the claims process 

14 is becoming so convoluted that anything we can do 

15 to keep it from becoming as convoluted as it is.

16 Maybe taking out as much as possible 

17 the individual decision-making. 

18 I agree that when we went to Seattle 

19 -- the people seemed to generally know what they 

20 were doing. What we were working with was pretty 

21 picked.

22 CHAIR MARKOWITZ: Pretty what?
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1 MEMBER CASSANO: Yes, there wasn't 

2 anything really controversial that we saw. It was 

3 one case that they actually agreed was adjudicated 

4 incorrectly and they were going to take another 

5 look at it.

6 So I'm not sure if we saw the best of 

7 what there was, or whether -- I know it wasn't a 

8 random sample because they picked them based on

9 their medical interests from the supervisor's 

10 position. 

11 I don't know that we could get really 

12 down and dirty in looking at these, other than to 

13 say send me a list of numbers of all the Parkinson's 

14 disease cases who have been adjudicated this month 

15 and I'll just randomly pick numbers. 

16 I don't need the files initially, I just 

17 need the case numbers and I'll just randomly pick 

18 numbers, or somebody will randomly pick numbers. 

19 And that's a little bit better than somebody --

20 I'm hoping they're not cherrypicking them, but they 

21 probably are a little bit. 

22 MEMBER WHITLEY: This is Garry. If 
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1 you do Parkinson's you need to do current cases 

2 because if you go back three to five years ago they 

3 didn't pay for Parkinson's at all.

4 MEMBER CASSANO: Right. Because 

5 there was not a lot of definitive evidence that 

6 organic solvents caused it.

7 MEMBER WHITLEY: Right. But recently 

8 they have been paying for a few at least in our 

9 area that I see Parkinson's.

10 Neuropathy they used to not pay at all. 

11 Now they're paying some neuropathy cases if 

12 there's no signs of diabetic even in the family 

13 -- of diabetes even in the family.

14 If there's any signs of diabetes 

15 they'll throw it out in a hurry.

16 The one they won't touch is pancreatic 

17 cancer. I don't know anybody that's been paid for 

18 pancreatic cancer. I could be wrong, but everybody 

19 I know, they get back a letter that says there's 

20 no evidence of any chemicals that cause pancreatic 

21 cancer.

22 MEMBER VLIEGER: To clarify, that's 
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1 only under E for toxic exposure, not Part B.

2 MEMBER CASSANO: There is some limited 

3 evidence for I forget what it is, an association, 

4 but it's pretty darn weak for pancreatic cancer. 

5 Unless -- could arguably disagree I don't think 

6 with not compensating pancreatic cancer. There's 

7 just not enough -- there's nothing practically out 

8 there about toxic etiology of pancreatic cancer. 

9 From what I've been able to see.

10 CHAIR MARKOWITZ: I agree.

11 MEMBER SILVER: So in terms of a 

12 process we could ask DOL for more systematic 

13 sampling, or counts of cases where these issues 

14 may come up.

15 Another thing we might do is if the 

16 advocates who are listening to weigh in with, you 

17 know, helpful one-page emails to flesh out where 

18 we might be useful on developing new presumptions.

19 MEMBER VLIEGER: I want to agree with 

20 Garry that Parkinson's disease even with adequate 

21 information is a hit or miss entity to get it 

22 accepted.
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1 And recently I had a case accepted that 

2 had been pending for more than a year. 

3 I cannot tell you the difference 

4 between the information provided in that claim and 

5 the other claims that got accepted and five others 

6 got denied.

7 It just seems very eclectic with what 

8 they accept and don't accept. And it hinges on 

9 the contract medical consultant report.

10 MEMBER CASSANO: Probably hinges a lot 

11 on the knowledge of the CMC.

12 MEMBER VLIEGER: I'm not willing to 

13 cast any aspersions but I totally agree with you.

14 MEMBER CASSANO: Because -- and it 

15 changes every month practically.

16 CHAIR MARKOWITZ: So we have just five 

17 minutes left, and I wanted to try to see if we could 

18 figure out what our next steps are.

19 And I would actually think that the 

20 report that Faye talked about a while back which 

21 was cases frequently denied, even though it would 

22 -- you couldn't publish the results in a journal 
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1 it might actually be useful to us.

2 Because we certainly want to try to pick 

3 up on diseases that were controversial but where 

4 there were enough cases that our presumption would 

5 help more than a couple of people.

6 And then if we pick diseases that we 

7 want to look at next that we ask for a listing of 

8 all the cases in a certain time period where this 

9 disease was at issue, just the case numbers, and 

10 then we pick a random sample and take a look.

11 MEMBER CASSANO: I think that's a good 

12 idea.

13 MEMBER VLIEGER: This is Faye. I have 

14 a copy of the data that was assembled by the 

15 Institute of Medicine for the program under -- by 

16 request from the Department of Labor.

17 And I'm going to be sending that to 

18 Carrie shortly. 

19 In the top 10 are a number of malignant 

20 neoplasms of different places. But something that 

21 is commonly denied as emphysema. I've seen a 

22 turnaround in that.
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1 So I will send this out. And this is 

2 from -- IOM was contracted by the Department of 

3 Labor. So this is from 2011 but I know I've got 

4 another list that DIAB and NTAC put together as 

5 part of what we would need to recommend things to 

6 the Department of Labor.

7 I'm sorry, I'm still looking for that 

8 one.

9 MEMBER CASSANO: I can get the full IOM 

10 report as well. I mean, anybody can. It's nid.edu 

11 and just send it out.

12 MEMBER BODEN: One other thing that we 

13 have to remember is it may be that particular 

14 entities that are frequently denied are actually 

15 denied for good reason. So it is an -- we have 

16 to keep in mind.

17 CHAIR MARKOWITZ: And we should ask or 

18 re-ask DOL if they have a list of the frequency 

19 of denied conditions.

20 I think we've asked that before but I 

21 don't recall the specifics. But we should at least 

22 try or try again if they have information on that.
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1 So, is there anything -- I think we've 

2 pretty much discussed most of the things that are 

3 relevant and even other things. No? Talk is good.

4 Are there any other things relating to 

5 presumptions that we need to discuss today? 

6 Otherwise we should adjourn.

7 Okay. So I'm going to -- let's see, 

8 I think Tori is going to send me some suggested 

9 language. I'm going to modify some of the things 

10 based on comments on the call. Then John Dement's 

11 written comment.

12 I'll draft a rationale to go along with 

13 this and then circulate this before our fall 

14 meeting.

15 I don't think that we have enough 

16 business to call for another presumptions working 

17 group meeting prior to our fall meeting. Does 

18 anybody think otherwise? 

19 MEMBER SILVER: Is following up with 

20 DOL to see how they're receiving our 

21 recommendations something for the working group 

22 or something for the full board? 
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1 CHAIR MARKOWITZ: That's for the full 

2 board. Doug gave us a brief report on Monday that 

3 things are either within the program being worked 

4 on or in the Secretary's office. And that's all 

5 we know at this point. 

6 But we'll continue to monitor it. And 

7 continue to send in new recommendations. 

8 MEMBER BODEN: Okay, well Steven, your 

9 fear of not having to end well before our designated 

10 time has been allayed.

11 CHAIR MARKOWITZ: Okay, that's good. 

12 Okay, thank you and we'll continue to communicate 

13 around this particular presumption medical section 

14 for asbestos related disease.

15 And then we're going to set the schedule 

16 for the full meeting in October or November so 

17 you'll hear from Carrie. Thank you.

18 (Whereupon, the above-entitled matter 

19 went off the record at 3:00 p.m.)

20

21

22
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