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UNITED STATES DEPARTMENT OF LABOR

+ + + + +

ADVISORY BOARD ON TOXIC SUBSTANCES

AND WORKER HEALTH

+ + + + +

WORKING GROUP ON PRESUMPTIONS

+ + + + +

MEETING

+ + + + +

TUESDAY,

JANUARY 10, 2017

+ + + + +

The Working Group met telephonically at 

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

presiding.

MEMBERS

SCIENTIFIC COMMUNITY:

LESLIE I. BODEN

JOHN M. DEMENT

KENNETH Z. SILVER

MEDICAL COMMUNITY:

VICTORIA A. CASSANO

STEVEN MARKOWITZ, Chair

LAURA S. WELCH
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CLAIMANT COMMUNITY:

FAYE VLIEGER

GARRY M. WHITLEY

DESIGNATED FEDERAL OFFICIAL:

CARRIE RHOADS
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TABLE OF CONTENTS

Welcome ....................................... 4

Roll Call ..................................... 4

Introductory Comments ......................... 5

Chair Comments ................................ 9

Discussion Regarding Assumptions and

Presumptions............................ 11

Current Use of Presumptions .................. 21

Asbestos Related Issues ...................... 26

Asthma Related Issues ........................ 73

COPD Related Issues ......................... 100

Adjourn ..................................... 113
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1 P-R-O-C-E-E-D-I-N-G-S

2 1:04 p.m.

3 MS. RHOADS: Good morning or 

4 afternoon, depending on where you are.

5 My name's Carrie Rhoads and I'd like to 

6 welcome you to today's teleconference meeting of 

7 the Department of Labor's Advisory Board on Toxic 

8 Substances and Worker Health, the Presumptions 

9 Working Group.

10 I'm the Board's Designated Federal 

11 Officer, or DFO, for today's meeting.

12 We do appreciate the time and the work 

13 of our Board Members in preparing for the meeting 

14 and for the work they're about to do as well.

15 I'll do a quick roll call of the Board 

16 Members on the line.

17 Dr. Steven Markowitz is the Chair of 

18 this group and the Chair of the Advisory Board.

19 CHAIR MARKOWITZ: Here.

20 MS. RHOADS: And, the Members are Dr. 

21 Victoria Cassano.

22 MEMBER CASSANO: Here.
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1 MS. RHOADS: Ms. Faye Vlieger?

2 MEMBER VLIEGER: Here.

3 MS. RHOADS: Dr. Leslie Boden?

4 MEMBER BODEN: Here.

5 MS. RHOADS: Mr. Garry Whitley?

6 MEMBER WHITLEY: Here.

7 MS. RHOADS: Dr. Laura Welch? Dr. 

8 Welch, are you on the line? I heard her before, 

9 she's probably on mute.

10 Dr. John Dement?

11 MEMBER WELCH: I'm sorry, sorry, I was 

12 on mute.

13 MS. RHOADS: Okay.

14 Okay, Dr. Dement?

15 MEMBER DEMENT: Yes, I'm here.

16 MS. RHOADS: And, Dr. Ken Silver?

17 MEMBER SILVER: Here.

18 MS. RHOADS: Okay, we're scheduled to 

19 meet from 1:00 to 3:30 p.m. Eastern Time today and 

20 we'll likely take a break around 2:15 or 2:30, 

21 depending on the discussion.

22 In the room with me today is Melissa 
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1 Schroeder from SIDEM, our contractor and Norm 

2 Spicer, an OWCP employee doing a detail with our 

3 group.

4 The copies of all meeting materials and 

5 any written public comments are or will be 

6 available on the Board's website under the heading 

7 Meetings and the listing there for this 

8 Subcommittee meeting.

9 The documents will also be up on the 

10 WebEx screen so everyone can follow along with the 

11 discussion.

12 The Board's website can be found at 

13 dol.gov/OWCP/energy/regs/compliance/advisoryboa

14 rd.htm.

15 If you haven't already visited the 

16 Board's website, I do encourage you to visit it. 

17 After clicking on today's meeting date, you'll see 

18 a page dedicated entirely to today's meeting.

19 The web page contains publically 

20 available material submitted to us in advance. 

21 We'll publish any materials that are provided to 

22 the Subcommittee there.
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1 You can also find today's agenda as well 

2 as instructions for participating remotely. If 

3 you are participating remotely and you're having 

4 a problem, please email us at 

5 energyadvisoryboard@dol.gov.

6 If you're joining by WebEx, please note 

7 the discussion is for viewing only and will not be 

8 interactive.

9 The phones will also be muted for 

10 non-Advisory Board members.

11 Please note that we do not have a 

12 scheduled public comment session today. So, 

13 calling information has been posted on the Advisory 

14 Board website so the public may listen in but not 

15 participate in the discussion.

16 The Advisory Board voted at its April 

17 2016 meeting that all meetings should be open to 

18 the public.

19 A transcript of the meeting and minutes 

20 will be prepared from today's meeting.

21 During the discussion, as we are on a 

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

2 transcriber has also requested that people use 

3 their headsets and not speakerphone because it's 

4 easier to understand.

5 At the beginning of the meeting, please 

6 state your name when you start speaking so we can 

7 get an accurate record of the discussion.

8 Also, please, for the transcriber, 

9 please let us know if you're having an issue with 

10 hearing anyone or with the recording.

11 As DFO, I see that the minutes are 

12 prepared and are certified by the Chair. The 

13 minutes of today's meeting will be available on the 

14 Board's website no later than 90 calendar days from 

15 today, per FACA regulations. If they're available 

16 sooner, we'll publish them sooner.

17 Also, although we --

18 (Telephonic interference.)

19 MEMBER CASSANO: Hello?

20 CHAIR MARKOWITZ: We just lost her.

21 MEMBER CASSANO: We certainly did.

22 (Whereupon, the above-entitled matter 
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1 went off the record at 1:07 p.m. and resumed at 1:10 

2 p.m.)

3 MS. RHOADS: Okay, I think we're all 

4 set.

5 CHAIR MARKOWITZ: Okay, so, Carrie, 

6 you finished your introductory comments?

7 MS. RHOADS: Yes, yes, I'm done.

8 CHAIR MARKOWITZ: Okay. This is 

9 Steven Markowitz, let me just continue and welcome 

10 Board Members. Also, welcome to the members of the 

11 public and the Department of Labor personnel and 

12 anybody else who may be on the phone.

13 I'll ask the speakers on the phone if 

14 you could say your name before you make your 

15 comments, that would be useful for the transcript 

16 of the meeting.

17 The agenda, for those of you on WebEx, 

18 can see what it is.

19 I'm just going to just make a couple 

20 comments and then turn it over to Les Boden who's 

21 got some general comments on presumptions and which 

22 should facilitate the process.
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1 And, then, I will walk us through a 

2 PowerPoint available on WebEx, looking at current 

3 use of presumptions.

4 A final point issue that we can discuss, 

5 elicit both general discussion, but also some 

6 suggestions, recommendations, about how we might 

7 improve some of the current presumptions and then 

8 get into exploratory discussion about other issues 

9 that might become subject of presumption.

10 And, then, we'll end the meeting with 

11 scheduling the next call and looking ahead towards 

12 our next in person meeting in April.

13 I would like to, in April, get to the 

14 point where we are discussing and voting on 

15 specific recommendations regarding presumptions, 

16 either current ones or future ones.

17 So, that's where I'm aiming, I'm hoping 

18 we can -- I think it's realistic actually.

19 On presumptions, just for those people 

20 on the call who are not necessarily used to dealing 

21 with compensation programs or thinking about 

22 presumptions, we use presumptions when we're faced 
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1 with significant uncertainly about certain 

2 elements that are needed to make decisions.

3 In this case, I think the exposures, 

4 they can be diseases and we use -- we make 

5 assumptions about those exposures for diseases 

6 given incomplete information, but, sufficient 

7 information to make connections plausible.

8 And, that is, we would call those 

9 presumptions when we make those connections with 

10 -- in the face of plausible, but insufficient 

11 information.

12 So, let me turn it over to Les for some 

13 comments about presumptions.

14 MEMBER BODEN: Thanks, Steven.

15 This is Les Boden.

16 I am in an interesting position in the 

17 group which is I really know very little about the 

18 connections between the medical observations and 

19 the diseases.

20 But, I've been thinking for a long time 

21 about the general question of how to use and how 

22 to think about presumptions in a compensation 
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1 program.

2 So, I just wanted to give you some of 

3 my thoughts about that.

4 The first thought is, well, why do we 

5 want presumptions anyhow? What are the possible 

6 benefits that writing down a presumption and using 

7 it will give to a compensation program?

8 Well, one, I think, important thing 

9 that it can give is that it can improve the 

10 consistency of decisions.

11 We always have an issue in any program 

12 where somebody's deciding whether or not to pay 

13 compensation, that there are differences between 

14 claims examiners in making those decisions.

15 And, what a presumption can do is it can 

16 make it more likely that people with the same 

17 exposure and the same medical condition will have 

18 the same compensation outcome. And, that itself, 

19 I think, is a very important goal.

20 The second thing it can do is it can make 

21 the decision process faster because people won't 

22 have to go through talking with other experts, with 
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1 gathering of additional evidence and, presumably, 

2 there would be fewer cases in which people are 

3 appealing decisions.

4 That means that the same number of 

5 people examining the claims can process more 

6 claims, which is good for the DOL because it has 

7 limited resources.

8 It also means that people who are 

9 applying for compensation would get it more 

10 quickly, which is, obviously, important to them, 

11 particularly people who are very, very sick.

12 Presumptions can be more or less 

13 precisely targeted. So, there's always a tradeoff 

14 between what in epidemiology people call 

15 sensitivity and specificity, that is a presumption 

16 increases the number of people with work-related 

17 illness who are compensated. And, if it does that, 

18 it also increases the number of people without that 

19 illness who are compensated. That's kind of 

20 unavoidable.

21 And, that's a choice that people who 

22 write and carry out presumptions have to make.
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1 In this case, the act of law is, I think 

2 of as an expansive law and any presumptions that 

3 are put into place should keep with the spirit of 

4 that law.

5 So, the law doesn't just say, at least 

6 is likely as not, that a particular exposure caused 

7 an illness. It can also be at least as likely as 

8 not that it aggravated or contributed to the 

9 illness.

10 Presumptions are generally designed to 

11 be a floor on who gets compensated. So, you can 

12 get compensated if you don't meet the presumptions 

13 but you're pretty sure getting compensated if you 

14 do. But, you know, warning there's a tendency that 

15 the people who use presumptions to turn the floor 

16 into a ceiling.

17 So, it's often at least a good idea to 

18 let people know that this is not a ceiling, that 

19 this is a floor.

20 Presumptions can be based on lots of 

21 different things, certainly including job 

22 category, exposure of intensity, duration or in 
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1 signs and test results.

2 Presumptions can also be either 

3 positive or negative. So, you could have a 

4 presumption that says, unless you had ten years of 

5 exposure or more, above a certain level of 

6 exposure, then it's presumed that the exposure did 

7 not cause the disease.

8 So, I think that's one other thing to 

9 think about.

10 So, that's all I want to say for now. 

11 I think that those ideas are a reasonable framework 

12 for thinking about presumptions in our case.

13 CHAIR MARKOWITZ: Thanks, Les.

14 This is Steven Markowitz.

15 I've got a question about the floor and 

16 the ceiling. Have you seen any language that is 

17 helpful in trying to address assessment problems 

18 to try to make sure that the floor doesn't become 

19 a ceiling?

20 MEMBER BODEN: I am not sure that any 

21 of the laws -- I'd have to look back, actually --

22 directly address the problem.
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1 But, it could be addressed in the 

2 guidance that's given to claims examiners. It 

3 could be made clear that, for example, if the person 

4 doesn't meet this criterion.

5 And, I think, actually, in the 

6 presumptions that are currently being used in the 

7 act, there are occasions where that's said. If the 

8 person doesn't meet the presumption, then the next 

9 step is to send it to either an industrial hygiene 

10 or an occupational medicine expert to get their 

11 input.

12 So, I think it can be made clear in that 

13 way. But, there's probably a certain amount of 

14 vigilance that's necessary to make sure people 

15 don't act on it.

16 CHAIR MARKOWITZ: I mean, since you're 

17 -- Carrie, this is Steve Markowitz.

18 I just got an email from Mark Griffon 

19 who wants the number and password to get into today.

20 MS. RHOADS: Okay, I'll send it to him 

21 right now.

22 CHAIR MARKOWITZ: Les, you want to 
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1 mention rebuttability or --

2 MEMBER BODEN: Yes, actually, sure.

3 So, there are two kinds of presumptions 

4 on that dimension.

5 So, a presumption can be rebuttable, 

6 that means that if you meet the criteria of the 

7 presumption, somebody can still argue that you 

8 shouldn't be compensated.

9 The alternative is there can be 

10 irrebuttable. So, if you meet the criteria, let's 

11 say you meet the ten years of exposure at a certain 

12 intensity or above or just ten years of exposure, 

13 then it's automatic that you get compensated and 

14 nobody is supposed to be able to deny you 

15 compensation at that point.

16 So, if you had a mesothelioma 

17 presumption that said, if you were exposed to --

18 if you have mesothelioma, then it's considered to 

19 be true that you were exposed to asbestos and if 

20 there was asbestos at the particular place you 

21 worked at, it's an irrebuttable presumption that 

22 you should be compensated.
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1 CHAIR MARKOWITZ: Thanks.

2 Steve Markowitz.

3 Any comments on Les' discussion?

4 MEMBER CASSANO: Yes, this is -- Steve 

5 this Victoria Cassano.

6 I thought Les' presentation, while this 

7 was really, really good, I just wanted to add a 

8 couple of pieces to it.

9 The way I've always worked with 

10 developing preventions and the way I see it is, you 

11 have -- if you establish --

12 There are two parts to everything. If 

13 you establish that somebody worked in a particular 

14 area or has a particular job coding in a particular 

15 area, depending on how fine you want to make it, 

16 then it's pretty proved that you were exposed to 

17 A, B, C, D and E.

18 And, if you were exposed to A, B, C, D 

19 and E and you have any one of the diseases that are 

20 presumed caused by that exposure, then it's a 

21 complete -- you don't have to go through all the 

22 machinations of proving that you were exposed or 
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1 you don't have to go through all of the medical 

2 evidence.

3 It's basically, boom, I worked in K12, 

4 I was, you know, so therefore, I worked in K12, I 

5 was exposed to A. As Les said, I was exposed to 

6 asbestos, I have mesothelioma. 

7 There's no real thought process or no 

8 real decision making process to be made at that 

9 point. So, it takes the guess work, it takes the 

10 individual decision making on the part of the CE 

11 out of it.

12 That's how it's done and, you know, with 

13 other agencies.

14 The other thing is, I've never heard or 

15 worked on a negative presumption. The assumption 

16 always is, let's say, it's three months of 

17 exposure, ten years of exposure, one year of 

18 exposure, if you do not meet that exposure, that 

19 criteria, as Les said, then you just go down the 

20 rabbit hole of having to have the medical evidence 

21 and a medical opinion that says, yes, this exposure 

22 at this level caused the disease.
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1 I would stay away from the concept of 

2 a negative presumption because science changes. 

3 And, you end up having to undo stuff and then you've 

4 got to go back and compensate people that weren't 

5 compensated before.

6 So, those are my two main comments about 

7 this. It's really very simple once you establish 

8 a presumption as far as the work goes.

9 And, Les alluded to all of that by 

10 saying you don't need the IH and you don't need the 

11 CMC. But the CE really doesn't have much else to 

12 do either if they've got proof of working in that 

13 presumed exposed area and proof of a covered 

14 disease for that exposure.

15 MEMBER BODEN: So, this is Les.

16 I think that you made a very good point, 

17 Victoria, made a very good point about the fact that 

18 the presumptions generally have these two parts, 

19 one is exposure part and the other is the disease 

20 part.

21 CHAIR MARKOWITZ: Other comments?

22 (No audible response.)
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1 CHAIR MARKOWITZ: Okay. Thank you, 

2 Les.

3 Let's move on and, if you could bring 

4 up the PowerPoint on the WebEx.

5 So, for Board Members, I sent around a 

6 version of this PowerPoint a few hours ago. I 

7 changed the first and last slide and added a new 

8 slide number two.

9 So, if you're looking at the -- you 

10 might want to look at the WebEx. Alternatively, 

11 if you're looking at the PowerPoint, just know that 

12 I changed some things slightly.

13 We will walk through examples of 

14 current use of presumptions in the program, mostly 

15 on the exposure side, but, to some extent, we'll 

16 talk about disease as well.

17 So, if you go to -- I don't know who 

18 controls this WebEx, but if we can go to slide 

19 number two.

20 My apologies to viewers on this slide, 

21 but let me -- you need to blow it up to see it. But, 

22 let me explain what I attempted to do here.
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1 This on the left column is a list of 

2 federal compensation programs. Black lung is the 

3 first, the second is the Victims' Compensation from 

4 World Trade Center, third is the Combat Veterans 

5 Compensation for eye lens and radiation. The 

6 fourth is the Agent Orange Compensation Program. 

7 And, then, the final one is Gulf War Compensation 

8 Program.

9 And, it doesn't really list explicitly 

10 what the presumptions are, but it lists the aspects 

11 of eligibility criteria with regard to exposure.

12 And, by the way, let me say that I had 

13 a summary statement. So, I had a doc last summer 

14 who did this and then described these programs in 

15 kind of a draft paper.

16 But, I show it because it -- for a few 

17 reasons. It shows you the variation in the various 

18 program.

19 You know, obviously, all different 

20 federal agencies, the only one, DOL is the Black 

21 Lung Program. And, then, different age programs, 

22 some of them, Black Lung dates from the late '60s, 
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1 whereas World Trade was set up in 2011 and the 

2 EEOICPA 2001.

3 But, most of these programs actually 

4 focus on single exposures. World Trade was a mixed 

5 exposure but it was, in some sense, a single 

6 exposure.

7 Unlike the old Part E which focuses on, 

8 you know, the Encyclopedia of Occupational Health

9 and Safety and these other programs focus on one 

10 set, one trade or one set of workers defined 

11 functionally by what they did, whether in wartime 

12 or in mines and the like.

13 And, then, some of them are quite 

14 specific on calendar time which helps set the floor 

15 for exposure eligibility.

16 So, EEOICPA, by contrast, deals with 

17 many time periods, many exposures and many 

18 diseases. So, it's, you know, in some respects, 

19 more challenging than some of these other programs.

20 And, some of these other programs have 

21 worked very hard to try to define issues in a way 

22 that suits the goal of the program which is 
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1 equitable compensation.

2 So, let's move on to slide two. So, we 

3 should recognize that, I don't know if WebEx -- I'm 

4 sorry -- if WebEx slide three. No, go back a slide. 

5 WebEx, we should be off that table. Who's 

6 controlling the WebEx? Is that the moderator or 

7 is that Carrie?

8 MS. RHOADS: We have it here. I think 

9 there's a little bit of a delay.

10 CHAIR MARKOWITZ: Okay, I think we're 

11 on slide two.

12 MS. RHOADS: You want the page after 

13 the chart, correct?

14 CHAIR MARKOWITZ: Correct. That's --

15 MS. RHOADS: Okay.

16 CHAIR MARKOWITZ: -- yes, slide three, 

17 okay.

18 So, you know, we should recognize 

19 actually the built in to the original Act of, you 

20 know, that there were explicit presumptions. And, 

21 here, I list a couple prominent examples.

22 They defined certain exposures --
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1 Special Exposure Cohorts from the beginning where 

2 they at least 250 days of work at one of the gaseous 

3 diffusion plants before February 1st, 1992 in a job 

4 which was monitored or a comparable job.

5 So, there's a duration that they built 

6 in. There's a challenge in time aspect and then 

7 there's a definition of a job or a broad set of jobs.

8 And, then, of course, there's a method 

9 to create new Special Exposure Cohorts which is 

10 listed, you know, at a 110 or 120 more Special 

11 Exposure Cohorts. But, in the original Act 

12 presumptions were used.

13 By the way, in gaseous diffusion plants 

14 which are, by no means, the most radioactive of 

15 these facilities.

16 And, then, the second one on silica, 

17 this relates to chronic silicosis required at least 

18 250 days of work during the mining of tunnels at 

19 the DOE facility at Nevada Test Site or in Amchitka, 

20 Alaska. Again, a duration set.

21 Calendar time indirect set by the 

22 description of it occurring during the mining of 
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1 tunnels and locations specified.

2 So, from the very beginning, 

3 presumptions were built into the Act, permitted 

4 when and employed when they were useful.

5 Next slide? So, we're going to talk 

6 about asbestos and spend a little bit of time on 

7 asbestos for a few reasons.

8 One is, they're important in terms of 

9 cause of illness among DOE workers and others.

10 And, but, also because it's in the most

11 developed in some respects of the presumptions 

12 since the creation of the Act. And, it appears in 

13 several different places.

14 Now, so, what I've taken to try to 

15 facilitate the discussion here for the PowerPoint 

16 is excerpts or summaries of DOL documents.

17 So, for instance, the first slide is 

18 from the procedure manual. If you want to -- those 

19 of you who are -- want to look up, you can go to 

20 the ERCP website, look at the procedure manual and 

21 look at the language that surrounds this.

22 And, for the next slide, for instance, 
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1 is from the bulletins and I hope I got the bulletins 

2 mostly correct.

3 But, in any case, so, I know asbestos, 

4 there's a lot of language in the procedure manual, 

5 you may recall, about defining diseases. And, it 

6 needs some work, frankly, but it doesn't 

7 necessarily need work on this call from all of us.

8 It's the kind of thing that those of us 

9 who deal with the medical aspects of asbestos and 

10 rate of disease can address separately without a 

11 ton of discussion.

12 But, disease of exposure is more 

13 problematic. And, so, the procedure manual spends 

14 most of its time discussing the diseases says what 

15 you see in this slide number four about exposure, 

16 which is a very general statement that, you know, 

17 it's based on when they worked, the type of work 

18 they did and the location of employment.

19 So, that's somewhat helpful, but 

20 totally nonspecific.

21 I don't know exactly when that language 

22 was created, but it's in the procedures manual and 
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1 I think it's years old is my hunch.

2 If you go to the next slide, which is 

3 -- and here, I provide excerpts on the asbestos 

4 issue sort of chronologically as they appeared in 

5 bulletins and circulars.

6 So, this is Bulletin 13 -- actually, 

7 dash 12, if you're looking at the original 

8 bulletin. I got that number wrong. So, this is 

9 in 2013.

10 And, this is in response to IR declaring 

11 that asbestos caused ovarian cancer and HAZ-MAP

12 went back and corrected the SEM or corrected the 

13 HAZ-MAP which ended up correcting the SEM on this 

14 issue.

15 But, in response, DOL issued a circular 

16 recognizing this newly recognized association and 

17 causation. And, then, describing who should get 

18 compensated for ovarian cancer.

19 So, here, now, we see some, you know, 

20 specifics about asbestos exposure. And, what it 

21 says in the bulletin is 250 days of significance 

22 asbestos exposure which is defined in work and a 
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1 job title on List A and I'll show you List A in a 

2 minute, or one year prior to 1996.

3 So, duration and some reference to 

4 counting time. And, then, they said it requires 

5 20 years latency from the initial VA employment or 

6 initial VA exposure to asbestos and diagnosis of 

7 the disease.

8 Or, absent those previous two direct 

9 pieces of information or conditions, if a person 

10 has asbestosis or mesothelioma and one is 

11 unfortunate enough to get ovarian cancer, then the 

12 diagnosis of asbestosis or mesothelioma, it 

13 suffices to provide evidence of exposure.

14 So, let's look at List A. List A is on 

15 slide six. And, you may need to blow this up a 

16 little bit to look at the full list, but I wanted 

17 to get it on one page here.

18 And, this is the same list that is used 

19 throughout the asbestos document. And, they're 

20 mostly construction and maintenance job titles.

21 There are areas of awkwardness here. 

22 There are times at which job titles appear on the 
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1 same line that don't -- aren't necessarily related. 

2 There are some repeated job titles in the list. 

3 So, the list needs a little bit of work, just clean 

4 up.

5 But, it does contain -- most of them, 

6 we would recognize very readily as job titles that 

7 intrinsically involve asbestos exposure, 

8 certainly in a certain era of work, calendar time.

9 So, this is the list they refer to as 

10 involving -- if a person works at one of these job 

11 titles or operations, they have significant 

12 asbestos exposure, that's the presumption.

13 And, so, if we go back a slide to slide 

14 five, we can see that if a person develops ovarian 

15 cancer and then worked at one of those jobs for 250 

16 days or a year prior to '86, they have enough

17 exposure to allow CE to make the linkage between 

18 their exposure and their illness of ovarian cancer.

19 But, this is the first time that I see 

20 that asbestos, that exposure criteria dealt with.

21 So, let's move on to slide, I guess, 

22 slide seven.
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1 And, here, this is from the -- it's 

2 Bulletin 13-12. It says explicitly if the 

3 claimants don't have these exposure, don't meet 

4 these exposure presumption criteria, that the CE 

5 will review them and refer them for industrial 

6 hygiene review.

7 So, this was an effort to address one 

8 of the concerns that Les raised that -- to try to 

9 get -- address this problem of a presumption as 

10 being a floor treated as a ceiling. But, nobody 

11 else gets in unless you meet these exposure 

12 criteria.

13 And, then, it says, especially for 

14 claims with more limited evidence of asbestos but 

15 more limited to List A for a year. They get 

16 referred onwards for a medical pending regarding 

17 causation.

18 So, that's what this bulletin says. 

19 So, that was in 2013 only around ovarian cancer 

20 which is, you know, probably very uncommon 

21 situation regarding asbestos exposure within the 

22 DOE complex.
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1 Next slide. So, in 2014, there's a 

2 specific circular issued on asbestos and exposure 

3 guidance.

4 So, go on to slide nine, and here, they 

5 list a full range of asbestos-related diseases and 

6 this circular now addresses not just ovarian 

7 cancer, but the other asbestos diseases as well.

8 Slide ten? Now, here, we get into what 

9 I regard as sort of the meat of the issue and on 

10 asbestos exposure. In fact, this is a -- what 

11 we'll see as a lot vaguer than what DOE said for 

12 ovarian cancer in the circular in 2013. But, let's 

13 walk through it and see what they did and see what 

14 needs some modification.

15 So, it's a little -- the circular's a 

16 little contradictory and in a certain part, a 

17 little vague. So, I'll just warn you about that, 

18 if it doesn't quite make sense, I tried to pull out 

19 the pieces to make sense of it.

20 But, so, it says nothing about prior to 

21 1986 DOE work. There's no presumption about List 

22 A or any other workers having exposure to asbestos.
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1 But, or work after 1986, assume that --

2 at DOE, that potential exposure was below the 

3 accepted standard.

4 Now, and, there's a little footnote to 

5 this in the circular that in 1986 OSHA revised its 

6 regulation on asbestos, revised the PEL downward, 

7 established both the standards for construction 

8 and general industry. And, that's the rationale 

9 for picking the 1986 date. And, we've discussed 

10 dates before.

11 So, after '86, assume that the exposure 

12 was below the accepted standards.

13 But, for the 19 occupations that we just 

14 looked at, they have a potential for greater 

15 asbestos exposure between 1986 and 1995.

16 In fact, the CE is to accept that they 

17 were potentially exposed to asbestos but likely at 

18 low levels.

19 This strikes me as a little puzzling on 

20 a number of counts, but they don't say it 

21 explicitly, but, I can only interpret this to mean 

22 that their exposure may have been above the 
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1 accepted standards but not much above the accepted 

2 standards because, otherwise, you wouldn't carve 

3 out a List A and state this exception.

4 But, in any case, the assumption, 

5 whether they are List A or not, is that the levels 

6 are likely to be low.

7 The next slide? And, we go back to List 

8 A if anybody needs to refresh their memory. Part 

9 of List A comes from ATSDR, some documents they put 

10 out in 2014.

11 So, if we go on to slide 12. Now, for 

12 the CE to accept levels of exposure above these low 

13 levels, there must be disintegrates and compelling 

14 evidence to show that the DOE work after '86 had, 

15 quote, consistent unprotected contact with 

16 asbestos of ACM.

17 So, this means that, even if you're on 

18 List A, the CE has to be looking at evidence that's 

19 pretty definitive that where worker claimant had 

20 consistent unprotected contact with asbestos or 

21 ACM post '86.

22 And, the, bulletin -- the circular, 
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1 excuse me -- lists what kind of evidence to look 

2 at which is, you can see it there, you know, kind 

3 of the usual stuff.

4 Interestingly, not occupational health 

5 questionnaires, it's not in the list. They may 

6 look at it, but I'm just saying, the way the 

7 circular reads, not in the occupational health 

8 questionnaire.

9 And, in fact, they don't even mention 

10 the SEM here as part of the evidence. But, maybe 

11 some of this information is thought to come from 

12 the SEM.

13 But, in any event, the CE has to look 

14 at IH monitoring, if it exists, into their reports, 

15 abatement breaches, testimony or affidavits, 

16 position descriptions for this evidence of, quote, 

17 consistent unprotected contact with asbestos or 

18 ACM.

19 And, if you go to the next slide, if 

20 evidence is suggested above the guidelines and CE 

21 contacts the IH for their expert opinion on whether 

22 there was significant exposure or not.
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1 And, then, finally, if you go to slide 

2 14, there is this paragraph, kind of befuddling 

3 paragraph, which says that any findings of 

4 exposure, including infrequent incidental 

5 exposure require review of physician to opine on 

6 the possibility of causation is necessary as even 

7 minimal exposure to some toxins may have a 

8 significant activating or contributing 

9 relationship to the diagnosed illness.

10 The only way I read this paragraph is 

11 that it's a contradiction of what was just said 

12 because the -- what the CE was looking for which 

13 was consistent unprotected contact would appear to 

14 be quite different from infrequent incidental 

15 exposure.

16 Although this paragraph does say that 

17 the physician now has to weigh in. So, presumably, 

18 the CMC has to be involved if the treating physician 

19 hasn't provided the well rationalized report.

20 But, in any case, to me, this is -- I 

21 don't know how to make sense of this actually, given 

22 what the circular said before.
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1 So, the next slide, just to summarize 

2 the circular, and because I want to talk about what 

3 we think -- how we think presumptions on asbestos 

4 should look like.

5 But, there were no explicit 

6 presumptions prior to '86. Post '86, assume that 

7 asbestos exposure was below the accepted standard, 

8 except for List A workers.

9 Next slide? The List A workers between 

10 '86 and '95 assume that their potential exposure 

11 was likely to be at low levels. And, Item Number 

12 4, to show greater than low levels, you'd need 

13 definitive and compelling evidence that there's 

14 consistent unprotected contact.

15 And, the next slide? If you have that 

16 kind of evidence, then, you send the referral to 

17 the IH for their opinion. And, then, finally, 

18 under any circumstance, you find that a specific 

19 exposure that requires a physician review.

20 So, next slide. First of all, there 

21 are issues I want to discuss about this 

22 presumption, but let me just stop talking for a 
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1 moment and open it up for comments.

2 MEMBER BODEN: Hi, this is Les. 

3 Hello?

4 CHAIR MARKOWITZ: Yes, I can hear you.

5 MEMBER BODEN: Okay, okay, sure, I 

6 couldn't tell.

7 I just wanted to make one comment which 

8 is, it seems to me, actually, we were talking about 

9 negative presumptions. But, this comes pretty 

10 close.

11 In other words, it's basically post '86 

12 says that, for everybody who's not in those 

13 occupations, we presume they didn't have adequate 

14 exposure to cause disease. And, even for those who 

15 did, who are in those occupations, we are presuming 

16 that they were likely exposed at the low levels.

17 So, this is actually, if anything, a 

18 negative presumption, I think.

19 MEMBER CASSANO: Yes. This is Tori.

20 I agree with Les. I don't think this 

21 is a presumption at all. A presumption takes 

22 discretion out of the compensation decision.
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1 This still has -- gives the CE 

2 discretion. Right? You know, you have to 

3 evaluate it and this and that and the other thing.

4 So, to me, this is not a presumption. 

5 It's a rather contradictory guidance when you look 

6 at it from beginning to end.

7 So, I guess I agree with Les and 

8 probably would go even further than that.

9 MEMBER DEMENT: Hi, this is John 

10 Dement.

11 I think these also are negative 

12 presumptions. One of the issues that's not 

13 addressed in this is a specific task, that the 

14 worker may have done either with or without 

15 respiratory protection.

16 And, it seems to me that's the driver. 

17 You know, really, what we're using are these job 

18 classifications in List A. They're surrogate from 

19 surrogate -- from the surrogate for the actual work 

20 that's done.

21 And, somewhere along the way, I think 

22 we need to, even post 1986, look at the issues of 
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1 specific tasks that workers may have done that we 

2 probably know or are likely to result in elevated 

3 exposures.

4 MEMBER CASSANO: I think if we -- I'm 

5 more of a lumper than a splitter and I think, in 

6 addition to these job classifications, I think we, 

7 you know -- if you're a secretary sitting in a work 

8 space, walking through where somebody's ripping 

9 out lagging and pipes, even if you're just walking 

10 through and you're -- and it's been going on for 

11 a year, you're exposed.

12 So, and, I don't know whether this is 

13 possible, but it's, you know, if you want to make 

14 it less specific than let's just say, if you worked 

15 in such and such, a building area, whatever, from 

16 day here -- Day A to Day C, you are presumed exposed.

17 And, then, if you have any one of these 

18 diseases, the disease is presumed to be due to that 

19 exposure.

20 Because, otherwise, you end up getting 

21 into -- you're not getting the benefit of the 

22 presumption in that you still have to go through 
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1 all these machinations to prove that, well, this 

2 task or that job classification, that, you know, 

3 for a year, even though my job classification says 

4 this, I was really doing that.

5 So, I think we need to be really 

6 careful, otherwise, we're making more work, not 

7 reducing the work.

8 MEMBER WELCH: This is Laura Welch.

9 I was just looking for but I can't find 

10 it, a picture in the procedure manual for claims 

11 examiners book, it's been here for a long time, but 

12 it was here, something that kind of supplements 

13 that maybe preceded that asbestos prevention which 

14 allowed to award a claim and, this went to these 

15 four cases.

16 But this document has a built in 

17 assumption that before '86 you can assume that 

18 asbestos exposure because there's less than to a 

19 negative presumption.

20 So, I would want to hear that, but it's 

21 not specific. And, I think that is also a little 

22 bit imbedded in the procedure manual, but I can't 
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1 find it right away. It's not that relevant, but 

2 it just makes sense, the fact that this is new 

3 procedure seems to be missing something.

4 I think it's present in the 

5 documentation but not in the previous circular or 

6 bulletin. That make sense to y'all?

7 CHAIR MARKOWITZ: Yes, this is Steven.

8 Yes, Laura, if you could identify or can 

9 you ask John Vance if there's another document that 

10 discusses the pre '86, that would be helpful.

11 MEMBER WELCH: Yes.

12 CHAIR MARKOWITZ: Other comments?

13 MEMBER WHITLEY: Garry here.

14 My guess is who came up with the '86 to 

15 '95 post --

16 (Telephonic interference.)

17 CHAIR MARKOWITZ: You know, well, we, 

18 you know, in the circular, they discuss where the 

19 '86 came from. We think the '95 came from the same 

20 place where the other '95 came from which it was, 

21 you know, our recommendation was that they rescind, 

22 and they accepted that recommendation, rescind 
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1 that 1995 circular.

2 But, there's a long rationale for 

3 picking '95 having to deal with changes that DOE 

4 set in place and also a particular policy guidance 

5 document they issued that year.

6 But, it wasn't actually based on 

7 exposure information.

8 MEMBER WELCH: Although, Steve, this 

9 is Laura again.

10 If you look at the history of asbestos 

11 regulations, in '94 that's when OSHA reduced the 

12 PL to 0.1. So, if they're assuming that that --

13 when reduced or all did exposures to 0.1, in '86 

14 it was 0.2 and in '76 it was 2. I think '76 reduced 

15 some of the ability and they did it again.

16 That's the way you link '95 -- between 

17 '86 and '95 makes sense under those regulations. 

18 I would say that presumes that one that exposures 

19 or controls as with the others. It's something and 

20 also that there's no health hazard at those levels.

21 And, one of the problems that I have 

22 with that presumption overall is it lumps all the 
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1 diseases together and the level of exposure that's 

2 necessary for either to limits, we all accept to 

3 be different than what's necessary for asbestos. 

4 You'd have to separate it out by specific 

5 prevention in there, have to separate it out by a 

6 specific disease how much exposure is needed.

7 CHAIR MARKOWITZ: This is Steven.

8 That's a good point about the '94 change 

9 in the OSHA regulation.

10 So, let's go to slide 18 and just set 

11 out -- some of these issues have been covered, 

12 otherwise, we could just fill out the story here.

13 I couldn't find if it exists, than the 

14 pre '86 presumption or at least any 

15 characterization of how they look at exposure to 

16 asbestos.

17 The issue of the List A work likely 

18 resolving low exposure between '86 and '95, no 

19 evidence is really provided for that.

20 That's the same kind of criticism we had 

21 of the '95 tech point for -- in that circular, we 

22 discussed in Oak Ridge.
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1 Item 3 that, even though they try to get 

2 specific because they cite job titles in List A in 

3 calendar years and then they say the exposure was 

4 likely low during the calendar years.

5 Actually, I said here, it doesn't 

6 facilitate decision making but maybe, actually, 

7 unless -- and Tori's point is that it does 

8 negatively facilitate decision making against 

9 significant exposure.

10 Next slide 19. This claims examiner 

11 has to judge whether there was the submitted 

12 evidence on exposure meets kind of a vague 

13 threshold for, quote, consistent unprotected 

14 contact with asbestos or ACM.

15 That's a hard decision for someone 

16 without much training, maybe an impossible 

17 decision to make correctly. And, it's, in and of 

18 itself, is kind of a vague.

19 But, the idea that they're -- you know, 

20 find that in the pieces of evidence that they cite 

21 is, except maybe in the testimony, is unlikely.

22 And, then, finally, the issue of the 
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1 last paragraph where any exposure gets sent off to 

2 the physician even if it doesn't make its way to 

3 the industrial hygienist if there wasn't 

4 sufficient evidence of exposure.

5 So, that sort of fills out some of the 

6 issues.

7 So, I'd like to talk about, you can go 

8 to slide 20, how to fix this issue on asbestos. 

9 And, I don't expect that we'll nail all the details 

10 here, but if we could spend a little bit of time 

11 talking about what we think this should look like.

12 Asbestos related diseases, so much is 

13 known that it strikes me that we ought to be able 

14 to come up with some reasonable presumptions that 

15 would at least cover a certain part of the workforce 

16 and a certain subset of asbestos related diseases.

17 And, so, I've listed issues or the 

18 things that could be done. We could help them 

19 expand List A to include other job titles that could 

20 be expected to have asbestos exposure.

21 Item 2 on slide 20, that we could change 

22 the presumption that if this day or on this day 
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1 amended that who worked prior to some date, and here 

2 we get into the same problem that they had with 

3 dates.

4 But, I'm not sure how to deal with this. 

5 But, who worked prior to some dates, we can presume 

6 that they had significant exposure to asbestos 

7 which contributed to their claim of asbestos 

8 related disease.

9 And, then, for other claims, not have 

10 the CE make the decision really about significance 

11 of exposure but really rest that within the IH and 

12 the CMC review process.

13 And, you know, if you go on to the next 

14 slide, consider in presumption setting some sort 

15 of exposure duration. It could be two years, it 

16 could be one year, it could be longer, probably not 

17 20 years, and, a late and two minimums.

18 And, then, to overcome this problem of 

19 presumption that's developing presumptions 

20 working against people who don't meet those 

21 criteria, be quite specific about how claimants who 

22 believe that they have an asbestos related disease 
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1 to help with the processes for their review.

2 And, so, if we could go back to slide 

3 20.

4 I'm not sure we need to go over List A 

5 in this -- on this call, but I do think we should 

6 take a look at it and see if there are other jobs 

7 that can be carved out.

8 You know, the -- thinking about, John 

9 Dement, and your point about tasks and then, also, 

10 Tori, your point about regardless of task, the job 

11 title being in certain building in certain times.

12 But, you know, exposure is 

13 characterized by job title, tasks, buildings, 

14 calendar time. And, there's such a tradeoff 

15 because, if we -- the more specific we get, the more 

16 we limit the utility of the presumption.

17 And, I don't know how to get the most 

18 of that tradeoff. I know, you know, if a person 

19 is a sheet metal worker from 1980 to 1995, I'm 

20 comfortable that they were exposed to asbestos, 

21 less so for, you know, certain other job titles, 

22 certain other calendar periods.
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1 But, I do think if we advocate 

2 something, it's got to be relatively simple or easy 

3 to apply in order to be useful in the claims 

4 process.

5 MEMBER CASSANO: Well, I -- this is 

6 Tori, yes.

7 I agree, it needs to be simple and, you 

8 know, that, you know, and I don't know which is the 

9 simplest way to do it, whether it's by location or 

10 by job title.

11 In most of what I've worked with, it's 

12 been by location, but you may not have the type of 

13 information you need to know where those locations 

14 were. So, maybe --

15 But, I don't think getting more 

16 specific than job titles is helpful at all. I 

17 think we need to go with one particular way of doing 

18 it and not complicate it. And, then, anything 

19 that's falls out prior to that goes through the 

20 regular process.

21 MEMBER DEMENT: This is John Dement.

22 I agree with the issue of not requiring 
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1 a presumption further than the job task. I mean, 

2 excuse me, further than the occupational groups. 

3 We could take a look at that and we can probably 

4 expand it to some extent.

5 But, I was interested in the specific 

6 task is more when those who not on List A in some 

7 time frame, you know, they can still do tasks that 

8 are just the same as those on List A.

9 I was looking at that as a supplement, 

10 if you will, to meet this other requirement that's 

11 in there, sort of a catch-all.

12 MEMBER CASSANO: And, I think that I 

13 was looking at the location thing as a broadening, 

14 not as to add on top of something. But, I think 

15 both the location bit and John's bit could be part 

16 of the supplemental statement, as John said, that 

17 if a person isn't in one of the job categories and 

18 either worked in an area where they can show there 

19 was asbestos, you know, exposure, or did a task in 

20 which there was presumed asbestos exposure, then 

21 it goes through the regular process and shouldn't 

22 be denied simply because it didn't meet the 
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1 presumption criteria.

2 CHAIR MARKOWITZ: This is Steven.

3 I agree with John that, you know, for 

4 instance, a chemical operator or utility 

5 operation, production personnel, I wouldn't --

6 they wouldn't necessarily be exposed to asbestos.

7 But, if they work in the area when the 

8 maintenance folks are changing out the pumps or the 

9 insulator is applying insulation or if they're in 

10 the area because that's part of their job, that 

11 that's the kind of job task that could supplement 

12 a job title that would -- could underlying 

13 presumption.

14 So, again, I suppose to the standard 

15 List A which is, you know, those who were exposed 

16 based on job title.

17 But, what would you do about calendar 

18 time? What would you do about setting a date or 

19 a range of dates, assume that there was significant 

20 exposure?

21 MEMBER WELCH: Steven, this is Laura.

22 I think, you know, that the evidence on 
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1 it would be somewhat based on the specific 

2 occasion. 

3 And, so, that's a big exposure for some 

4 occupations --

5 MS. RHOADS: Hi, Dr. Welch, this is 

6 Carrie. We're having a hard time hearing you, Dr. 

7 Welch.

8 MEMBER WELCH: I'm sorry, I just 

9 unplugged my headset, is that better?

10 CHAIR MARKOWITZ: Much better.

11 MEMBER WELCH: That's better? Okay. 

12 I think I talk low sometimes.

13 So, that, you know, when you look at how 

14 asbestos was slowly taken out of occupations, there 

15 are some things like storing of asbestos was ban 

16 in '73 and I don't know, in Michigan it stopped a 

17 couple years later.

18 And, then, asbestos in textile 

19 products, insulation products in '78. And, so, it 

20 could, like this -- there's periods of time where 

21 different occupations might have had a decrease in 

22 exposures.
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1 Maybe that probably only really matters 

2 for some diseases, you know, because as long as 

3 asbestos was being limited and removed and cut in 

4 a workplace, you know, there's some asbestos in 

5 place in an industrial setting even though there 

6 wasn't new stuff being applied, there's still 

7 ongoing exposure.

8 So, I mean, I think it's really a 

9 question of what time would we say that asbestos 

10 remediation was done in a controlled fashion on a 

11 regular basis. And, I know, you said there's 

12 certain, you know, residential construction, 

13 though, and in schools, they were contractors going 

14 in and tearing it all out until it was made illegal, 

15 which was a long time after the insulation was 

16 banned.

17 And, you know, '95 is probably a 

18 reasonable time to say that asbestos was -- after 

19 '95 there's not current history of specific events 

20 or specific exposures. I think that's reasonable. 

21 I don't know that it has to be sustained and 

22 continuous if it says in the presumptions.
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1 MEMBER DEMENT: Yes, this is John 

2 Dement.

3 One of the issues with asbestos, even 

4 though we, you know, follow the EPA guidance, it's 

5 controlled in place until it's removed 

6 appropriately by regulations.

7 But, the issue of unexpected 

8 disturbances, I can tell you, here at Duke, we have 

9 a program, we've had it for years for control in 

10 place and removal when there's any change.

11 But, about every year, you'd have three 

12 or four of these unexpected exposures that occur. 

13 And, those would be, to me, something that, if a 

14 worker could specifically I have that in terms of 

15 the, instead of this other area, not in a job, but 

16 this supplemental information, then, to me, that 

17 would be sufficient probative evidence for 

18 exposure if they had one of the diseases in the 

19 right latency time period.

20 MEMBER CASSANO: I mean, I don't even 

21 think if somebody has mesothelioma, and they worked 

22 in -- for one of these companies for any period, 
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1 you know, for how -- whatever amount of -- let's 

2 not even go that far.

3 Somebody has mesothelioma, they were 

4 exposed to asbestos. The only thing that you have 

5 to determine then is were they exposed to asbestos 

6 under a program that -- and at a contractor that's 

7 covered by mea culpa.

8 I mean, there's no thought process 

9 involved in, gee, that the mesothelioma due to 

10 asbestos.

11 So, as far as that's concerned, I don't 

12 think there should be a time limit because I have 

13 seen and put people into asbestos medical 

14 surveillance programs up until the early 2000s for 

15 exactly the reasons John said, the unexpected 

16 exposure.

17 They go in and they fix something, they 

18 pull something out, it looks a little like asbestos 

19 and so somebody actually thinks, gee, maybe we 

20 should send this off to see if it's asbestos. And, 

21 oh, my God, guess what? It is.

22 So, I think we need to be, again, very 
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1 general and, in some ways, very generous in how we 

2 make these determinations so that we don't preclude 

3 people who have -- are -- should be legitimately 

4 compensated from getting compensation.

5 MEMBER WELCH: This is Laura again.

6 Would you guys think we should look at 

7 presumptions by disease? You know, instead of 

8 lumping them all together? Because, clearly, 

9 mesothelioma takes less exposure than asbestosis.

10 And, that -- because, I mean, I would 

11 -- you know, I was thinking of, Steven, you're 

12 probably as familiar as I am with asbestos 

13 compensation criteria for the Asbestos Trust Fund.

14 And, I could go back and look at those, 

15 how they determined substantial exposure. You 

16 know, they were generous criteria.

17 But, I think that, you know, 

18 mesothelioma is a special circumstance because you 

19 might -- I wouldn't be one to say that somebody had 

20 a one-time exposure in an mitigation job, but they 

21 had asbestosis. 

22 MEMBER CASSANO: I think, to a certain 
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1 extent, Laura, it should be by disease, but not so 

2 complicated that, again, somebody needs to have --

3 mesothelioma should be separate, all other 

4 asbestos related diseases might be able to be 

5 lumped together.

6 CHAIR MARKOWITZ: This is Steven.

7 You know, I actually -- by separating 

8 out the diseases in two or three classes wouldn't 

9 be that difficult if the only variables are going 

10 to be potentially duration and latency. And, it's 

11 not, you know, an impossible task.

12 The -- you know, I wonder whether we 

13 could recommend describing two routes, two equally 

14 legitimate routes of accepting a claim? One by a 

15 presumption route and the other by a bit more 

16 tailored kind of analysis without the route being 

17 considered a poor cousin.

18 If we can do that then we can describe 

19 the presumption route, the first route, as a not 

20 excessively worry about where it's going to be 

21 punishing people who don't meet those presumption 

22 criteria because there's no way their claim's going 
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1 to get in the door.

2 MEMBER WELCH: Yes, I think that's 

3 good.

4 MEMBER CASSANO: Yes, a presumption 

5 should never be exclusionary as, I think Les said, 

6 it's a floor not a ceiling, and that's exactly the 

7 way VA does it is, if you meet the presumption, it's 

8 over and done, we'll get your claim finished in, 

9 you know, two days.

10 But, if you're not, you don't meet the 

11 presumption, then you have to show proof of 

12 exposure and, you know, but you still don't have 

13 to -- all you have to do is show proof of exposure, 

14 you don't have to show medical evidence that your 

15 disease is related to that exposure because that's 

16 the second part of the presumption.

17 So, if you say that mesothelioma, 

18 asbestosis, and let's -- I'm not even going to get 

19 into lung cancer at this point -- are presumptively 

20 caused by asbestos exposure, then all you have to 

21 prove is asbestos exposure.

22 So, you don't need the medical person 
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1 chiming in to say, yes, this person had enough 

2 asbestos exposure to cause, you know, asbestosis 

3 or from whatever. You don't need that part of it.

4 CHAIR MARKOWITZ: So, does that mean 

5 that for our presumptions, we would not list any 

6 calendar date?

7 MEMBER CASSANO: Oh, no, I think we 

8 would.

9 MEMBER WELCH: Yes, you would. I 

10 could imagine creating one that, you know, it's 

11 likely this day and that looks, though, before '86, 

12 it's presumed that it would cause any of these 

13 diseases. And, then, we'll have to figure out 

14 between '86 and '95 and after '95.

15 I mean, I think those are kind of 

16 reasonable time frames where the exposure was much 

17 higher before '86. And, because so many asbestos 

18 products were still being installed.

19 But, I think it can be --

20 CHAIR MARKOWITZ: So, a sheet metal 

21 worker who starts to work in '90, works for two 

22 years in sheet metal work, '90 to '92, taking 
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1 somebody from List A with exposure in the early '90s 

2 and then develops an asbestos related cancer would 

3 fall in the presumptions.

4 I'm just trying to get --

5 MEMBER WELCH: You know, I disagree a 

6 little bit with what Tori had said before in that 

7 the diagnosis of asbestosis necessitates an 

8 understanding of asbestos exposure. It's not like 

9 a diagnosis, we're giving a completely medical 

10 diagnosis.

11 So, to say they have a diagnosis of 

12 asbestosis, doesn't mean that someone has 

13 sufficient asbestos exposure and can attribute 

14 that fibrosis to asbestos. I mean, it's sort of 

15 particular.

16 But, you know, sheet metal is one --

17 sheet metal is an industry that, you know, relative 

18 exposure if not a lot of exposure was there. But, 

19 it's getting very nuanced.

20 So, I think we probably -- to have a 

21 presumption that is reasonable, not too 

22 restrictive, not overly generous and a good way 
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1 that people who don't need it can get a good 

2 evaluation not just a dot, dash, you know, I think 

3 would include just having this and from a big 

4 exception before '86, before the '70s, but not 

5 adjusting exposure.

6 I don't know if sheet metal workers were 

7 that much exposed after '75. You know, and just 

8 because --

9 So, it's -- I don't know, I mean, you 

10 can have -- whether someone whose exposure started 

11 after '86 could develop asbestosis, I think if 

12 that's the question. I don't think it's that many 

13 jobs. I mean, it would have to be something 

14 specific about the job.

15 I mean, I think you can take that list 

16 as this, though, and say, people have exposure 

17 after '86 that develop asbestosis attributed to it. 

18 It's possible, but it wouldn't be true for all those 

19 cases, especially if they're not on that list.

20 CHAIR MARKOWITZ: Could we go back 

21 slide five, actually, while -- because it's the 

22 ovarian cancer bulletin and it was kind of -- if 
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1 we'd just take a look here and just where they say, 

2 one year of significant work or asbestos work, you 

3 know, on List A prior to '86 and 20 years latency.

4 Does this come closer to what we think 

5 is possible for the rest of asbestos related 

6 diseases, not focusing on the number of days or the 

7 time period or -- this is --

8 So, in fact, DOL has done a version of 

9 this for one of the lesser frequent asbestos 

10 diseases. Is that -- do people agree about that?

11 MEMBER WELCH: I think it's good for 

12 ovarian cancer.

13 MEMBER CASSANO: Yes, I think -- yes, 

14 the 250 days, I mean, I don't know enough about 

15 ovarian cancer and asbestos exposure. But, again, 

16 you've got different levels of exposure. I don't 

17 know a better way of doing that.

18 But, you know, I remember talking to 

19 guys that, you know, would wet a rag and put it 

20 around their face to keep the asbestos dust out of 

21 their nose and mouth. And, that was well past 

22 1986.
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1 CHAIR MARKOWITZ: Right, okay, yes. 

2 No, okay, yes. I was not trying to settle on a date 

3 or a duration, I was just trying to show that DOL 

4 has done kind of what we're already talking about.

5 MEMBER CASSANO: Yes, this is what I 

6 consider a presumption, 250 days exposure, 20 years 

7 latency and this is your diagnosis. It's simple, 

8 it's clean, there's no discretion.

9 MEMBER WELCH: So, can I lay something 

10 out that makes it -- I don't know if it makes it 

11 easier or more complicated because the law says 

12 caused, contributed or aggravated.

13 So, if someone had in their whole 

14 lifetime career, and that's asbestos exposure that 

15 people would say they have jobs that's related to 

16 asbestos, how much of that time needed to be a day?

17 One of the slight problem that I'm not 

18 crazy about it, this kind of latency if you miss 

19 a daily exposure because -- I mean, that's things 

20 that go in a presumption but it shouldn't apply to 

21 anything else because the exposure after the 

22 beginning of latency can be a contributory to that 
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1 cancer, obviously.

2 So, let's say you've got somebody who, 

3 let's say like Tori said, someone's got a diagnosis 

4 of asbestosis. Then, is a year of exposure prior 

5 to '86 contributory at daily?

6 MEMBER CASSANO: Sure.

7 MEMBER WELCH: I mean, it may not be 

8 enough to be the total cause, but it can be 

9 contributory. It makes it harder or it makes it 

10 easier, it depends on how you're going to establish 

11 the medical diagnosis of asbestosis.

12 I think, unfortunately with 

13 presumptions, if we over think them, we end up not 

14 accomplishing what we want to accomplish. And, I 

15 know that most presumptions that I've seen and I've 

16 worked on are very much over simplified because if 

17 they aren't over simplified, you end up not being 

18 able to have people without medical degrees or 

19 industrial hygiene degrees figuring out how to make 

20 it happen.

21 MEMBER BODEN: This is Les.

22 I was thinking along similar lines to 
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1 Laura. Was that Laura who was talking before?

2 MEMBER CASSANO: This is Tori.

3 MEMBER BODEN: No, right before you.

4 MEMBER CASSANO: Yes, that was Laura.

5 MEMBER BODEN: Right. That -- and 

6 this is an -- I mean, first of all, you know, if 

7 you do what -- go in the direction that Laura was 

8 thinking, it doesn't have to make the presumption 

9 more complicated. It just makes our thinking more 

10 complicated about how we form the presumption.

11 And, I think this is an interesting 

12 question. So, there's the contributed and 

13 aggravated part, there's also the, at least as 

14 likely as not part, which we shouldn't forget, that 

15 is the presumption doesn't have to make us feel like 

16 this person definitely had asbestosis that was 

17 caused by exposure at the DOE.

18 MEMBER CASSANO: I agree.

19 MEMBER BODEN: Right? It has to be 

20 more -- at least as likely as not and it could be 

21 contributed to or aggravated. So, I think we 

22 shouldn't get stuck thinking it's just easy to do, 
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1 right, it's the way my mind works, too, that this 

2 particular presumption means, oh, I'm really 

3 pretty positive that this person had asbestos 

4 disease that was caused by their DOE exposure.

5 So, that makes thinking about the 

6 presumption harder. It doesn't necessarily make 

7 the presumption harder to put into effect.

8 MEMBER DEMENT: John Dement.

9 I think that is an excellent point. 

10 So, most of us are more used to dealing with greater 

11 levels of certainty.

12 And, I think one of the things we could 

13 do here, I think it's 250 days, some of us could 

14 argue about whether or not it's a good choice of 

15 numbers. It seems like that's fairly reasonable 

16 presumption of exposure related to a disease.

17 We might actually think similar to that 

18 about post 1986. And, I think we all agree that, 

19 for asbestos, exposure would be decreased over 

20 time. We could perhaps think of a presumption post 

21 1986 of a greater number of working days that we 

22 would feel comfortable that these were important 
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1 asbestos exposures related to a given disease.

2 MEMBER WELCH: That makes sense.

3 CHAIR MARKOWITZ: Yes, that's 

4 interesting.

5 MEMBER WHITLEY: Garry here.

6 Keep in mind that these -- this is not 

7 like regular industry. This is buildings, I mean, 

8 it's buildings that were built in the '40s and '50s 

9 and, basically, if I look at the film, every 

10 building out there, even the office buildings, are 

11 listed there has asbestos.

12 So, if you had a worker that was a 

13 secretary or an engineer that worked in an 

14 engineering building for five years in the early 

15 '90s, let's say, and the film says they was exposed 

16 to asbestos. So, how do you handle that?

17 MEMBER CASSANO: I think what we're 

18 saying is, if we go by job title, that person would 

19 -- might not be covered by the presumption, but that 

20 doesn't preempt them from their claim being 

21 evaluated on the work of the exposure information 

22 that they're given -- that they get, that they 
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1 submit as well as the medical evidence that they 

2 submit. I think that's what we're trying to say.

3 MEMBER WHITLEY: What if we did it like 

4 they do special cohort stuff? If a site has a 

5 special cohort and they're saying before, I'll just 

6 say 1986 or '95 or whatever number we've used there, 

7 and you have these 23 pre-approved cancers, then 

8 you don't have to go through all the DOE free 

9 constructions and all that stuff.

10 It's a given that it's as likely as not 

11 it could have been caused, aggravated, whatever, 

12 from those sites, that's the way they did it with 

13 special cohort sites.

14 MEMBER CASSANO: I think that's 

15 basically what we're trying to do is, you don't have 

16 to go through dose exposure and stuff like that. 

17 You were here, you were doing this job for 250 days. 

18 It's been 20 years, you have a disease that we've 

19 considered to be presumptively caused by this and 

20 you get compensated without going through all the 

21 rigmarole.

22 CHAIR MARKOWITZ: This is Steven.
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1 But, I think, yes, you're thinking 

2 almost the way the gaseous diffusion plant SEC was 

3 written up in the original Act. You know, 250 days 

4 at that place and in a job that was monitored or 

5 should have been monitored or something could have 

6 been monitored, that gets you in.

7 The problem is, some of these diseases, 

8 mesothelioma's a particular case that is so 

9 specific to asbestos. Lung cancer, which is, you 

10 know, more common as well to mesothelioma people 

11 get for other reasons don't -- it doesn't --

12 MS. RHOADS: All right, there's a lot 

13 of background noise. Could you mute your lines 

14 please if you're not talking?

15 CHAIR MARKOWITZ: I think we would need 

16 some greater specificity than just, you know, 

17 worked at that site for X period of time, unless, 

18 of course, Congress wants to change the Act.

19 So, let me make a suggestion. We're at 

20 2:30. If there are any final comments on the 

21 asbestos issue, we've gotten some of the questions 

22 and issues out on the floor. Obviously, we're not 
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1 going to resolve them.

2 Why don't we take a five minute break 

3 and then come back. We've got until 3:30 for 

4 briefer discussion on asthma and then touching on 

5 the COPD and hearing loss and then discussing kind 

6 of other areas that we might want to look at in terms 

7 of presumptions.

8 All right? Sort of closing comments on 

9 the asbestos issue?

10 (No audible response.)

11 CHAIR MARKOWITZ: So, we're on the half 

12 hour then, can we -- you're on the half hour where 

13 ever you are, whatever time your clock says. So, 

14 we'll just come back in five minutes.

15 (Whereupon, the above-entitled matter 

16 went off the record at 2:29 p.m. and resumed at 2:37 

17 p.m.)

18 CHAIR MARKOWITZ: Could we go to slide 

19 20 -- 22, I'm sorry, 22? I want to talk about 

20 asthma.

21 This will be a lot shorter discussion 

22 than asbestos and shows you kind of the variation 
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1 that exists.

2 So, I looked for in the various 

3 circulars, bulletins, communications, manuals, 

4 for asthma and in the procedure manual, the only 

5 thing I could find was in at the bottom of Exhibit 

6 1 which is this matrix which I didn't -- I will spare 

7 you, I'll just report to you what it says so you 

8 don't need to look at it.

9 It says almost nothing about exposure 

10 criteria for asthma. This is look at facilities, 

11 job titles, processes and dates.

12 And, then, weighs in on how you 

13 diagnosis occupational asthma with pretty strict 

14 criteria actually, which we don't need to discuss 

15 here because I'm not sure whether there -- well, 

16 when we look at the next circular or bulletin, 

17 you'll see what -- how they address that.

18 So, if go to the next slide 23, and this 

19 is a new circular, relatively new, it's 2015, I have 

20 a typo there, October 2015.

21 And, it says -- acknowledges that 

22 occupational asthma can be caused by a lot of 
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1 different things and there were a lot of different 

2 things of daily complex.

3 So, basically, to see directed to 

4 accept it if the doctor writes a report saying it 

5 is occupational asthma. And, I think provides 

6 some modicum of rationale for that. They don't 

7 really discuss a whole lot about what level of 

8 rationale.

9 And, or if the doctor says it's asthma, 

10 not occupational asthma, but asthma caused by a 

11 toxin, that that should suffice for the CE and they 

12 don't have to send it to industrial hygiene or they 

13 only need to proceed further with any consideration 

14 of exposure.

15 So, and that alternative definition of 

16 if a doctor doesn't say occupational asthma but 

17 says asthma caused, contributed to or aggravated 

18 by an occupational exposure to a toxic substance, 

19 that's reading directly from the bulletin, that 

20 suffices.

21 So, the -- so they've removed the whole 

22 exposure part of it. They really just rely what 
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1 would appear to be entirely on the treating 

2 physician. They don't set out CMC versus treating 

3 physician, they just say if the physician 

4 diagnosis.

5 Now, there is one wrinkle to this which 

6 is Item Number 2 on the slide, which is that, if 

7 the claims are filed after the DOE work has been 

8 terminated, that is to say they have asthma at age 

9 70 and they stopped work at age 62, that that 

10 requires some detail from the physician.

11 And, that's a difficult question 

12 actually, but some detail from the physician about 

13 how active exposures at work produced the asthma 

14 that appears post-termination of employment.

15 And, if that doesn't exist, then the CE 

16 sends it to the CMC, not to the IH, but the CMC for 

17 consideration after collecting whatever exposure 

18 information that he or she can find.

19 And, that's pretty much it for the 

20 asthma presumptions. So, comments?

21 You think there are any improvements in 

22 this?
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1 MEMBER CASSANO: I don't see this even 

2 as really a presumption in that they're just 

3 telling them that if it's -- the doc says 

4 occupational asthma, you don't need to do an 

5 exposure assessment.

6 I think a presumption for asthma like 

7 we're trying to define a presumption for, you know, 

8 asbestos related disease, is probably impossible.

9 So, I wouldn't mess with this very much 

10 at all and just not even call it presumption because 

11 I don't think -- it doesn't look like one to me.

12 MEMBER WELCH: This is Laura Welch.

13 I agree, too. I don't think some of it 

14 -- this allows a way for the claims examiner to 

15 accept a claim without sending it to a CMC, that's 

16 good. And, I don't see a way to improve it.

17 COURT REPORTER: Hello, this is the 

18 transcriber. Could you just repeat that?

19 CHAIR MARKOWITZ: Laura, there's a 

20 comment if you could repeat what you said?

21 MEMBER WELCH: Yes, but I agree with 

22 Tori Cassano, but it'd be hard to improve on this. 
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1 The one thing I think looks good about it, even if 

2 it's not clearly a presumption is that, it provides 

3 a clear way for the claims examiner to accept a 

4 claim without a CMC referral and that's good. Is 

5 that okay?

6 CHAIR MARKOWITZ: This is Steven.

7 Actually, I'll give you that there is 

8 a presumption built in here, but I'm not sure we 

9 should spend our time doing that. So, I'm not 

10 going to pursue that. So, we can just move on 

11 unless there are other comments about this.

12 MEMBER VLIEGER: This is Faye.

13 What I have seen is when a doctor claims 

14 it's occupational asthma and you have no exposure 

15 documents, they'll come back and say, no, it's just 

16 asthma, you didn't prove it was occupational.

17 Is there some way to have a presumption 

18 of exposure for these people that when the doctor 

19 says it's occupational asthma that they can't 

20 retort that it's only asthma?

21 CHAIR MARKOWITZ: This is Steven.

22 That's interesting because this 
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1 bulletin would appear to intend to circumvent that.

2 What it says is that, quote, when a 

3 claimant files a claim for asthma, evidence is 

4 required to substantiate reasonably that the 

5 employee has a medical diagnosis of, quote, 

6 occupational asthma, end of quote.

7 So, sure, the physician has to provide 

8 some rationale. And, the preceding language in 

9 the bulletin is intended to be very liberal because 

10 it recognizes that there are many, many causes.

11 But, I hear what you're saying and I 

12 don't really know how to specify beyond what's 

13 already written, or whether it should be actually.

14 I mean, frankly, this is Steven, again, 

15 frankly, depending on the case, but that would seem 

16 to go against that they're misapplying, frankly, 

17 this bulletin.

18 Now, I don't know, say, whether, yes, 

19 this bulletin was issued October 8, 2015, was 

20 effective that date. I don't know whether, you 

21 know, we're talking of something that predated 

22 that. But --
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1 MEMBER VLIEGER: This is Faye again.

2 Well, it since this bulletin has come 

3 out where, in my estimation, the claims examiner 

4 is trying to play lawyer and trying to get any 

5 reason to deny versus finding the reasons to 

6 accept.

7 It's been my experience since my claim 

8 was accepted in 2009 that they've become more and 

9 more restrictive on accepting occupational asthma. 

10 And, it seems like the bulletins give them a reason 

11 to deny.

12 Like you said, it's a reason for them 

13 to actually exclude rather than include. So, as 

14 much as possible, and I've enjoyed being a 

15 discussant about that, so as far as this is 

16 possible, I'd like to make sure that the 

17 discretionary portion of the claims examiner's job 

18 is removed because they're neither lawyers that are 

19 practicing law nor are they medical doctors, yet 

20 they do both on a routine basis.

21 MEMBER BODEN: That sounds -- this is 

22 Les -- that does sound, you know, appropriate to 
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1 me, that this -- I think Steven is right, that there 

2 is a presumption in here. The presumption is, if 

3 the physician diagnosis occupational asthma, then 

4 it's presumed that it was caused by an exposure to 

5 a toxic substance at a DOE site.

6 So, it may be worthwhile for this 

7 committee to think about clarifying what that means 

8 so that a claims examiner doesn't look at the 

9 diagnosis and say, I don't believe it was 

10 adequately supported.

11 I mean, I guess that the word reasonably 

12 in there is, you know, you know, what does -- if 

13 the physician just says I think it's occupational 

14 asthma caused by a toxic exposure, but doesn't 

15 provide any evidence of the exposure that might 

16 have caused it, is that going to be okay? And, if 

17 so, this document should be clarified.

18 MEMBER VLIEGER: this is Faye.

19 Presently, is that if there's a 

20 diagnosis by a doctor of occupational asthma 

21 without a discrete exposure explicitly stated in 

22 the rationale for the diagnosis, they will deny it 
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1 because they'll say this worker was not exposed per 

2 the SEM.

3 And, they're only given to the labor 

4 category exposure being complete. The labor 

5 category is not understanding that workers were 

6 dispatched all over. And, so, you know, it gets 

7 back into this Catch 22 that, because the SEM 

8 doesn't have a way to the disease for that labor 

9 category, then they'll be denied because the 

10 doctor's report was not well rationalized to 

11 support that it was occupational asthma outside the 

12 exposures listed in the SEM.

13 So, on a catch -- the catch for all of 

14 that, they'll come back and they'll say, if the 

15 doctor could identify a toxin, but then again, if 

16 that toxin's not listed in the labor category or 

17 have a reasonable explanation that the CE will 

18 accept that they were exposed to that, they won't 

19 accept it.

20 On a corollary claim that I have, I have 

21 a painter with more than 25 years' experience who 

22 has a unique form of Non-Hodgkin's lymphoma. And, 
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1 we've proven that the products he uses on a daily 

2 basis contain the toxins that everybody else 

3 accepts cause Non-Hodgkin's lymphoma.

4 But, the Department has said, well, it 

5 doesn't say that in the SEM. It doesn't say that 

6 that mixture is causing cancer and so he couldn't 

7 possibly have been exposed to enough of the pure 

8 chemical that's linked to Non-Hodgkin's lymphoma 

9 because that's the mixture that's he's using.

10 I just want to demonstrate to you the 

11 lengths to which they'll go to find a way around 

12 a presumption.

13 MEMBER BODEN: Okay, so, here's my 

14 question on this, I'm reading the document. The 

15 document says, any dust, vapor, fume or other 

16 airborne material. Is there anybody who's worked 

17 at a DOE site that wasn't exposed at least once to 

18 a dust, vapor, fume or other airborne material?

19 You know, that seems pretty broad.

20 MEMBER CASSANO: Yes, but they don't 

21 all get -- they don't all end up getting 

22 occupational asthma.
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1 MEMBER BODEN: I know, but that doesn't 

2 -- what it says is you've got asthma and you've been 

3 exposed to any dust, vapor, fume or other airborne 

4 material, then it seems to me that this is saying 

5 it's presumed that -- and the doctor says it's 

6 occupational, then you're done.

7 MEMBER CASSANO: Yes, and --

8 CHAIR MARKOWITZ: This is Steven.

9 Let me just break in here for just a 

10 moment because this bulletin actually instructs 

11 the claims examiner they are to not consult the SEM 

12 because it says, quote, asthma is no longer listed 

13 in the SEM. And, the EEOICP IH will not review 

14 asthma claims, end of quote.

15 But, then, it goes on in instructions 

16 to the CE to say that, for the CMC who has not opined 

17 here if they're not happy with the treating 

18 physician's report, for the CMC, the CE has to 

19 provide where the employee worked, dates of covered 

20 employment, the labor categories and details about 

21 the jobs performed. So, there is some evidence.

22 But, I think, you know, maybe actually 
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1 looking at some asthma claims that have been filed 

2 since this bulletin was put into effect would give 

3 us some real insight into how it's applied.

4 MEMBER CASSANO: Yes, one more 

5 comment. I think this is more a training and/or 

6 not disciplinary, but corrective measure on the 

7 parts of the CEs than putting more into this 

8 bulletin.

9 Because, if it says you're not supposed 

10 to use the SEM, then you shouldn't. And, based on 

11 a previous recommendation that says that the whole 

12 claims folder should go to the CMC, that means the 

13 occupational health questionnaire would go to the 

14 CMC and, therefore, the CE doesn't have --

15 shouldn't have the discretion to pull out what --

16 cherry pick the pieces of the exposure information, 

17 et cetera that they think is important or germane.

18 So, I think in some roundabout way, we 

19 fixed this, but I think we shouldn't -- should look 

20 at some of the claims that have -- especially those 

21 that have been denied since this was put out.

22 Does that make any sense?
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1 MEMBER VLIEGER: I like that answer. 

2 This is Faye.

3 I'm looking at the SEM on another screen 

4 right now and all of the disease links to asthma, 

5 or I'm looking at a welder which I figured was a 

6 pretty typical one, asthma is not on his -- on the 

7 disease links for that labor category.

8 But, the labor category, you know, has 

9 other lung conditions on it, COPD is still on the 

10 list.

11 So, as long as we -- currently, the 

12 bulletins have not worked. The intent was good, 

13 but the concept was good, but the execution failed. 

14 So, you know, anything we can do to increase 

15 execution percentages would be great.

16 CHAIR MARKOWITZ: So, this is Steven.

17 So, that's an argument for looking at 

18 some claims, some recent claims I think. Does that 

19 -- then we have the evidence to look at execution.

20 MEMBER DEMENT: This is John.

21 Based on what we looked at sort of the 

22 aggregate portion of the asthma cases, it looks 
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1 like about 65, 66 percent were denied and the reason 

2 give is the negative causation.

3 If you're going to look at those, I 

4 would suggest that that's where we sort of look at 

5 those specifically that had a negative causation.

6 CHAIR MARKOWITZ: Good idea.

7 Any final comments on asthma before we 

8 move on?

9 (No audible response.)

10 CHAIR MARKOWITZ: Okay. There's some 

11 background noise, some squeaking.

12 MEMBER CASSANO: Sorry, I just muted my

13 phone, that's my door.

14 CHAIR MARKOWITZ: Okay.

15 And, in fact, Tori is going to excuse 

16 herself early so --

17 MEMBER CASSANO: Yes.

18 CHAIR MARKOWITZ: Okay. So, let's 

19 move on, it's this slide, the next slide, COPD.

20 Now, so, I looked again at the manual, 

21 bulletins, circulars, et cetera for where COPD is 

22 addressed.
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1 And, it's mostly addressed in relation 

2 to asthma. There is in the procedure manual, if 

3 you go to the end of the exhibits and the matrix, 

4 mentions COPD, but it doesn't say anything about 

5 exposure. It just really says how you diagnose it.

6 One important thing is, and actually, 

7 if we go to slide 26 for a moment so I can dispense 

8 with this matrix business.

9 One important item that it mentions, 

10 and I don't know if this is applied or not, some 

11 of us noticed this quite some time ago is that, at 

12 least in the matrix, it says that the -- one of the 

13 criteria is the employee has a history of being a 

14 never smoker. That's one of the requirements for 

15 calling COPD occupational, which is wrong.

16 But, I don't --

17 MEMBER WELCH: Steven, can I -- the way 

18 I understood that, and I can probably find it, was 

19 if the employee was in the particular -- and it's 

20 early on in the program -- if the claims examiner 

21 was reviewing a case and an employee had never been 

22 a smoker, they could accept the COPD claim without 
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1 a CMC opinion. Otherwise, if they'd been a smoker, 

2 they always had to go to a CMC.

3 CHAIR MARKOWITZ: Okay. That makes 

4 sense. Okay, that makes a lot more sense. Thank 

5 you.

6 Okay, so then, we can go to the recent 

7 bulletin 1602 on COPD and asthma, oh excuse me, 

8 asbestos, and just briefly, because I'm going to 

9 ask Laura to chime in here, but briefly, it says 

10 that to relate asbestos exposure to COPD, it's 

11 required that a person work -- do the work on List 

12 A for at least 20 years prior to 1980 or that the 

13 IH review support that there was 20 years of 

14 significant asbestos exposure.

15 So, otherwise it needs to be reviewed 

16 by a CMC. And, this is all about asbestos, it 

17 doesn't address any other exposure in that 

18 bulletin.

19 So, while I know on the second on 

20 Friday, you all discussed this, so do you just want 

21 to say some things about this?

22 MEMBER WELCH: Yes. Partly, what I 
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1 did on the SEM call, can the transcriber hear me 

2 okay? You're doing okay?

3 (No audible response.)

4 MEMBER WELCH: I guess so.

5 CHAIR MARKOWITZ: We can hear you.

6 MEMBER WELCH: Yes, but I thought you 

7 couldn't hear me when I was talking before. Okay.

8 The building trades had sent in some 

9 comments to the Department on this presumption and 

10 which was a description of why assuming asbestos 

11 is an era and the 20 years or an era and that, to 

12 me, you're an era.

13 And, putting forth a more up to date 

14 rationale relating to COPD that's been caused by 

15 a combination of workers, gas, dust and the 

16 committee likes the comments and pretty much 

17 supported it. Of course, the building trades 

18 would take it.

19 And, so, you made the call to evaluate 

20 -- take those suggestions from the building trades 

21 and put them into something that looks more like 

22 a presumption the way the Department likes the 
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1 presumptions.

2 And, John Vance was on that call. He 

3 said the more specific information you give them, 

4 the better.

5 And, one other point I wanted to make 

6 sort of related is that he noted then on that call 

7 was that presumptions are something the Department 

8 can implement right away.

9 If we were ask about changes in policy 

10 or procedures that require a change in the 

11 procedure manual, then that takes a lot longer. 

12 So, if anybody wants me to go through 

13 the rationale for our changes or I could circulate 

14 to this committee, I can circulate the documents 

15 the building trades put together and you could take 

16 a look at it.

17 We tried to be -- I'm partly with this 

18 like, where did this come from? But, I had to kind 

19 of get past that to be able to say, well, no, it's 

20 asbestos because this is all key to asbestos, 

21 that's why we picked 20 years and 1980 as a 

22 particular time to make a diagnosis of asbestosis 
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1 rather than COPD.

2 CHAIR MARKOWITZ: It would be helpful 

3 -- this is Steven -- it would be helpful if you will 

4 send that around.

5 But, did you all discuss and settle on 

6 kind of a provisional set of presumptions around 

7 COPD?

8 MEMBER WELCH: Yes, let me pull up my 

9 documents. I should have had that open for you. 

10 It's going to take me a few seconds.

11 The idea was to have documented 

12 exposure to vapors, gaseous, dust and fumes based 

13 on job title and occupational history.

14 And, that, I think what we were talking 

15 about was -- sorry, I can't actually --

16 MEMBER DEMENT: Hey, Laura, I think 

17 that the time period was five years of exposure.

18 MEMBER WELCH: Yes. But, it was five 

19 years total.

20 MEMBER DEMENT: Yes, it's five --

21 MEMBER WELCH: And, then --

22 MEMBER DEMENT: But it doesn't have to 
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1 be continuous, but five years of total exposure.

2 CHAIR MARKOWITZ: Of total DOE 

3 exposure or --

4 MEMBER DEMENT: No, just --

5 MEMBER WELCH: Total exposure within 

6 -- what I was fixing to try to look up is we said 

7 one or two years of DOE exposure.

8 CHAIR MARKOWITZ: But, why -- this is 

9 Steven -- while you're looking that up, so, in the 

10 claims process, I don't think the claims examiner 

11 is looking at or should look at or is permitted to 

12 look at non-DOE exposures.

13 So, the matter would be to set a time 

14 limit for DOE exposure. I understand the science 

15 is different, but, how are we going to address that?

16 MEMBER WELCH: But, I think, maybe it's 

17 a couple listed there, one of which is that you --

18 if we think that it takes five years of exposure 

19 overall to be causative for COPD, then you set it 

20 at five.

21 Or, I'm not sure that a good number of 

22 them go to then, you know, if they don't meet the 
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1 five, then they go forward for an individual 

2 review.

3 CHAIR MARKOWITZ: I'm sorry, this is 

4 Steven.

5 There's contributory coverage, 

6 aggravation language or at least as likely as not, 

7 does that weigh in on this question or help?

8 MEMBER WELCH: Well, that's how we 

9 ended up with like five years total. I thought 

10 that the DOE be contributory if it was one year 

11 within that five years.

12 But, if all they had was a total of one, 

13 which would, you know, in the context of an overall 

14 exposure would be contributory, it's probably not 

15 contributory if you look at the science. It makes 

16 it complicated, I think.

17 CHAIR MARKOWITZ: Right.

18 MEMBER WELCH: We also recommended 15 

19 years from first exposure. I mean, we listed a 

20 bunch of covered exposures and then mixed 

21 exposures. Part of the problem is those aren't 

22 necessarily all in SEM. You know, the covered 
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1 exposures.

2 What we've seen when we received COPD 

3 cases is that a worker that clearly would have had 

4 exposure to welding, it might not be linked to his 

5 job title and the SEM, for example. So, you end 

6 up with only a few of these worker exposures.

7 And, that can be improved on by in 

8 improving the occupational questionnaire.

9 CHAIR MARKOWITZ: This is Steven.

10 Is the thinking that the -- a 

11 presumption might key in on job titles? Or, do you 

12 need the detail about tasks and exposures agents?

13 MEMBER WELCH: We were thinking 

14 exposures. But, it may be possible to pick some 

15 job titles that, you know, somebody has done that 

16 for five years, you could put him at five years of 

17 exposure to these agents.

18 But, I think there are people who have 

19 combined exposures.

20 CHAIR MARKOWITZ: I'm thinking that --

21 I'm sorry, I wasn't clear. This is Steven again.

22 I'm not talking about the length of time 
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1 now, I'm talking about which exposures, because the 

2 medical studies ask the question, are you or have 

3 you been exposed to vapors, gas, dust or fumes. 

4 And, then, they'll ask for whatever period of time, 

5 very nonspecific. Right?

6 And, so, in thinking about just using 

7 VGDF, vapors, gas, dust and fumes as the exposure, 

8 are you talking about the claims process actually 

9 looking at specific exposures provided by the SEM 

10 or otherwise? OHQ?

11 MEMBER WELCH: Let me let John, I don't 

12 think we got that specific, but that's a very good 

13 point.

14 MEMBER DEMENT: Well, see, I think our 

15 thinking was trying to be more consistent with the 

16 contemporaneous literature and that is vapors, 

17 gas, dust and fumes exposures rather than specific.

18 And, we were sort of looking at labor 

19 categories as a surrogate for those VGDF exposures. 

20 Then we made a statement that, you know, just as 

21 we were talking about with asbestos, even if you're 

22 in other categories, not in the specific list, if 
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1 you could still demonstrate exposures to these 

2 vapors, gas, dust and fumes, that should be 

3 sufficient.

4 CHAIR MARKOWITZ: Yes, this is Steven.

5 I would agree with that.

6 MEMBER DEMENT: But, we were tagging in 

7 on some labor categories which we, you know, eight 

8 priorities were accepted as having those 

9 exposures.

10 CHAIR MARKOWITZ: Right, and as 

11 opposed to asbestos, the list of those labor 

12 categories at these facilities is going to be 

13 extensive.

14 MEMBER DEMENT: Yes, and I think that 

15 we were part -- and this is back to the SEM idea, 

16 I think it's going to take some work on the part 

17 of updating the SEM to make sure that those are 

18 flagged.

19 CHAIR MARKOWITZ: Yes, this is Steven.

20 I wonder whether it actually would need 

21 to use the SEM at all or they could just bypass the 

22 SEM by looking at a -- the CE could look at the 
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1 diagnosis and then look at a list of job titles.

2 MEMBER DEMENT: Well, with that, I 

3 think diagnosis, job title and now, you know, the 

4 literature itself is either we ask a lot of 

5 questions about tasks and all kinds of things.

6 The simple question, you know, did your 

7 job exposure to vapors, gas, dust and fumes has been 

8 shown to be a pretty good predictor of COPD risk 

9 in a number of studies. So, it's not a bad 

10 surrogate in and of itself.

11 CHAIR MARKOWITZ: We can add that to 

12 the occupational health questionnaire.

13 MEMBER DEMENT: Yes.

14 CHAIR MARKOWITZ: Actually, the same 

15 questions.

16 So, are there other comments on the COPD 

17 issue before we move on? We've got about 20 

18 minutes.

19 So, this is Steven, Laura, so what's the 

20 plan to address COPD over the next number of months?

21 MEMBER WELCH: I was going to take what 

22 we -- what the building trades had put into its 
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1 letter and job titles and create it into something 

2 that's more of a draft of presumptions. And, our 

3 committee is going to have another call before the 

4 April meeting to talk about it.

5 I'm also going to talk to Mark Griffin 

6 -- Mark? Did Mark get on the call? Maybe he's 

7 trying to call in.

8 About job titles that both for the 

9 occupational history questionnaire and specific to 

10 this presumption, how you can identify --

11 differentiate within the product workers by job 

12 titles that entail certain exposures. And, I'm 

13 going to talk with him about that.

14 CHAIR MARKOWITZ: Okay. Any other --

15 before we close out COPD, any other comments or 

16 questions?

17 (No audible response.)

18 CHAIR MARKOWITZ: Okay, so let's move 

19 on --

20 MEMBER WELCH: Can I mention one thing, 

21 Steven? It's not specifically related to that, 

22 but something that I learned from the call last 
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1 week, which I haven't been completely there, but 

2 an approach that the Department of Labor current 

3 takes is if the worker reports an exposure on the 

4 occupational history questionnaire, it has to be 

5 validated in the SEM.

6 So, they look at the occupational 

7 history questionnaire, but in essence, pretty much 

8 you get to find the labor category or any 

9 information about locations.

10 And, that the presumption is that it's 

11 self-reported, the occupational history 

12 questionnaire, self-reported that 

13 exposure-specific information has to be validated 

14 either by the SEM or the documents they get from 

15 the site, which is something that we have to 

16 address.

17 CHAIR MARKOWITZ: Yes, well, that's 

18 wrong.

19 MEMBER WELCH: But, that's -- it's not 

20 written down anywhere, but that's, I mean, you 

21 know, I think that they -- Garry and Faye would 

22 agree with that, but they pretty explicitly stated 
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1 that on the call at that time.

2 (Simultaneous speaking.)

3 MEMBER VLIEGER: This is Faye.

4 CHAIR MARKOWITZ: Let me -- I'm sorry, 

5 that was Steven speaking, the person who said 

6 that's wrong.

7 Go ahead, Faye, I'm sorry.

8 MEMBER VLIEGER: This is Faye.

9 What you may or may not be aware of is, 

10 under Department of Energy regulations, unless 

11 three or more people are injured in the same 

12 incident or accident, they are under no requirement 

13 to go back and investigate the injury. They just 

14 go, oh, it happened and they move on.

15 Well, the investigation would include 

16 that supplemental monitoring. And, in my 

17 particular accident, because it happened around a 

18 lot of people, they did air monitoring but then they 

19 hid the results for more than seven days before they 

20 had them analyzed. And, they did it without a 

21 chain of custody and without proper handling.

22 So, the air monitoring that they did was 
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1 virtually useless for what was evident at the time 

2 of the exposure because it had decayed so badly in 

3 the week before they actually did the GC/MS on it.

4 But, in most cases, like Kirk has said 

5 on our other calls, is a report of an incident 

6 happens and the monitor will show up 20 or 40 

7 minutes later, do an air sample, go over stuff in 

8 here.

9 So, the fallacy of requiring that 

10 incident or accident of exposure to be documented 

11 is ongoing.

12 CHAIR MARKOWITZ: So, let's move on, to 

13 be continued.

14 The -- well, I had one last thought 

15 which is that if we have a common sentiment about 

16 the utility of, you know, OHQ independent of SEM 

17 or other supporting documentation, we should 

18 probably voice that opinion, raise that at our next 

19 Advisory Board Meeting, discuss that. I'll put it 

20 in there.

21 MEMBER WELCH: Yes, and I would plan to 

22 do that because I think that, you know, the -- part 
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1 of the whole process is how the OHQ could be used 

2 more effectively, would be --

3 And, I think the Department of Labor 

4 wants to hear a little bit where they can feel 

5 comfortable validating what the reports on the NHQ. 

6 We'll discuss that.

7 CHAIR MARKOWITZ: Okay, so the SEM 

8 Committee will raise that, great.

9 MEMBER WELCH: Yes.

10 CHAIR MARKOWITZ: Well, the next item 

11 is hearing loss and solvent exposure. And, I 

12 didn't list this with the purpose -- for the purpose 

13 of having a discussion about this at the here and 

14 now.

15 This was, Laura presented this, some on 

16 this at our Oak Ridge meeting. Rosie Sokas has 

17 also looked into this.

18 There is a new memo from, I think Dr. 

19 Stokes, or within DOL, looking at hearing loss and 

20 solvents and noise that was issued at the end of 

21 December.

22 And, there's a lot of -- and then, 
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1 there's been some email traffic within IH and in 

2 the CMC committee in the last couple of weeks on 

3 this issue.

4 So, my -- I just need to figure out --

5 we need to figure out who's going to sort of carry 

6 this issue forward at the next meeting, develop a 

7 set of improved presumptions around this along with 

8 documenting the science.

9 This is Steven again. I guess we could 

10 form a subset of the working group, this working 

11 group and pull in other people who are interested 

12 to move this issue forward. That's one option.

13 The other option is to place it in one 

14 of the existing subcommittees with input from other 

15 interested individuals.

16 MEMBER WELCH: This is Laura.

17 I'd suggest we do that, if you want I

18 think would work best.

19 CHAIR MARKOWITZ: Okay. I'm dizzy 

20 with power over here.

21 Any other comments, questions?

22 (No audible response.)
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1 CHAIR MARKOWITZ: Okay. So --

2 MEMBER WHITLEY: Garry here.

3 This is a good presumption that is best 

4 not used as a ceiling. The way they're using it 

5 is exactly a ceiling. They say it's ten years and 

6 you've got nine years and eight months, then you 

7 get a letter back that says you don't meet the 

8 criteria.

9 We need to look into that because this 

10 is bright, it works good except is the law as a 

11 ceiling.

12 CHAIR MARKOWITZ: Okay. So, I just 

13 want to mention in the last item on the list here 

14 which is chronic beryllium disease and 

15 sarcoidosis.

16 So, this is an example of a disease 

17 presumption that exists. We're not going to 

18 discuss it, but it's being discussed in the Part 

19 B subcommittee a lot about when you consider 

20 sarcoidosis to be CBD.

21 And, the point is that DOL has language 

22 setting that out. And, there's some ambiguity, 
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1 but that committee is addressing them.

2 So, in the last few minutes we have, I 

3 just want to discuss whether there are issues that 

4 we should consider for developing or recommending 

5 a set of presumptions.

6 And, while you're thinking about that, 

7 above and beyond, obviously what we've already 

8 discussed, I will -- DOL originally gave us 14 

9 priorities that they asked help with on 

10 presumptions and half of about -- 8 out of 14 are 

11 cancers and they were prostate cancer, breast 

12 cancer, melanoma, bladder cancer, kidney cancer.

13 And, in each instance, it's in relation 

14 to usually some specific exposures that they ask 

15 about.

16 Then, in the non-cancer outcomes 

17 include Parkinson's, diabetes, non-malignant 

18 thyroid disease, immune system disorders and heart 

19 disease in relation to radiation.

20 So, I just wanted to put that on the 

21 table.

22 MEMBER WELCH: Steven, can you clarify
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1 something for me? Did they want us to develop a 

2 presumption or do they want us to like help them 

3 with developing assumptions?

4 CHAIR MARKOWITZ: Right, right. Yes.

5 MEMBER WELCH: It's a little unclear.

6 CHAIR MARKOWITZ: Yes, I'm looking at 

7 the language and I'm not sure who wrote this, but 

8 some of the language that went along with this are 

9 output presumptions.

10 But, I don't think the issue -- I'm not 

11 sure the issue with these questions are really 

12 presumptions, it's really the science here. But, 

13 it was to know about these relationships.

14 And, each of them requires, you know, 

15 significant research into the literature, 

16 actually, to see whether it's an issue of 

17 presumptions or it's an -- or whether there's 

18 enough there to make any sort of causal connections 

19 under any circumstances.

20 But, with or without that list, are 

21 there other conditions that you think would be ripe 

22 for us thinking about some presumptions?
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1 MEMBER VLIEGER: This is Faye.

2 I see with the sheet metal workers and 

3 welders a lot of other neurological conditions, 

4 especially peripheral neuropathy from solvents.

5 And, I'm thinking of one particular 

6 case where the person was accepted for, you know, 

7 the toxic hearing loss. But, then, when it came 

8 around to saying he had enough exposures for 

9 peripheral neuropathy, they said that the 

10 exposures were not substantiated.

11 I'm not sure how we can handle that, but 

12 peripheral neuropathy in the sheet metal workers, 

13 pipe fitters, welders, the people that actually, 

14 you know, dip their parts in solvents and then weld 

15 it on and then inhaled the fumes, I think that if 

16 we could look at that one, it's also one of the major 

17 hitters that I see.

18 CHAIR MARKOWITZ: Okay.

19 MEMBER WELCH: And, you know, at one 

20 point, this is Laura Welch, and at one point, we've 

21 asked the Department for a list of diagnoses so we 

22 can get a sense of what the most common claims they 
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1 have coming in.

2 And, that kind of fell by the wayside 

3 when I think we heard from Doug Pennington that they 

4 don't categorize all the incoming claims.

5 But, if we wanted to get an idea for any 

6 specific, like there are for any specific 

7 disorders.

8 I know, in the meeting seemed to be big 

9 for them and asbestos was a big one for them. And, 

10 I believe listed the 14 things that seemed to be, 

11 I guess, keep coming -- popping up then you'd have 

12 with them, common or not.

13 We could go back to the Department and 

14 say, which are the other ones that you -- what are 

15 the big claims and make sure we have it covered. 

16 Because, I think we can get a data report on which 

17 claims are most frequent.

18 CHAIR MARKOWITZ: Yes, this is Steven.

19 That's a good idea, we should, you know, 

20 maybe the 14 -- the list of 14 represents half of 

21 them, maybe not.

22 MEMBER WELCH: It may represent all the 
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1 ones that they think they're having trouble with, 

2 but not necessarily the ones we've been having 

3 trouble with.

4 You know, they didn't put COPD on their 

5 list, this is one that they wanted help with. And, 

6 I think we need it.

7 CHAIR MARKOWITZ: Right.

8 MEMBER WELCH: But -- and I think even, 

9 you know, like Faye had other ones that she has a 

10 problem getting through, but it may not be the ones 

11 that -- I mean, maybe this universe of, you know, 

12 getting input from the advocates community and some 

13 places we've looked at, maybe we do have the big 

14 -- either a big claim number, diagnoses for the big 

15 problems listed.

16 MEMBER VLIEGER: This is Faye.

17 DIAB wrote up a list of the things that 

18 we were seeing the most problems with. And, then 

19 the advocates, I can dredge up that letter.

20 And, then, I know the other advocates 

21 probably in public comments, the ones that are in 

22 this thing can probably add to the list.
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1 MEMBER WELCH: That would be great.

2 CHAIR MARKOWITZ: Yes, that'd be 

3 great.

4 MEMBER WELCH: And, I think probably 

5 good.

6 CHAIR MARKOWITZ: Other comments?

7 (No audible response.)

8 CHAIR MARKOWITZ: So, the last piece of 

9 business is to just roughly settle on our time 

10 table.

11 I was thinking that we could work on 

12 aspects of this, the asbestos related diseases 

13 request probably around asthma. And, the SEM 

14 Committee's going to make progress with COPD. 

15 And, we'll figure out the hearing loss, make some 

16 progress.

17 And, then have another call of this 

18 working group toward the second half of March, 

19 meaning that we would have to schedule it the next 

20 couple of weeks and then have the Federal Register 

21 Notice come out, with the idea of being -- having 

22 three or four weeks until the meeting in Washington 
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1 State in April where we could, if we're far enough 

2 along, actually present proposals and come to 

3 agreement and make some recommendations.

4 Does that sound reasonable?

5 MEMBER VLIEGER: This is Faye.

6 It sounds good to me.

7 CHAIR MARKOWITZ: Okay. So, any 

8 closing comments?

9 (No audible response.)

10 CHAIR MARKOWITZ: Nothing. So, 

11 Carrie, is there anything you need to say as the 

12 DFO before end the call?

13 MS. RHOADS: No, we're all good. I 

14 will send something around about setting up some 

15 calls in March.

16 CHAIR MARKOWITZ: Okay, great.

17 Okay, thank you very much.

18 MS. RHOADS: Thanks everybody.

19 (Whereupon, the above-entitled matter 

20 went off the record at 3:23 p.m.)

21

22