UNITED STATES DEPARTMENT OF LABOR

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ADVISORY BOARD ON TOXIC SUBSTANCES AND WORKER HEALTH

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WORKING GROUP ON PRESUMPTIONS

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MEETING MINUTES

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TUESDAY,

JANUARY 10, 2017

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The Working Group met telephonically at 1:00 p.m. 

Eastern Time, Steven Markowitz, Chair, presiding.

MEMBERS

SCIENTIFIC COMMUNITY:

JOHN M. DEMENT

KENNETH Z. SILVER

LESLIE I. BODEN

MEDICAL COMMUNITY:

STEVEN MARKOWITZ, Chair

LAURA S. WELCH

VICTORIA A. CASSANO

CLAIMANT COMMUNITY:

GARRY M. WHITLEY
FAYE VLIEGER

DESIGNATED FEDERAL OFFICIAL:

CARRIE RHOADS
Introduction and Chair Comments

Ms. Rhoads called the meeting to order at 1:04 p.m. Chair 

Markowitz said that he wants the Board to be discussing and 

voting on specific recommendations regarding presumptions. The 

Agency should be able to make assumptions about exposures for 

diseases when given sufficient and plausible information. 

Discussion Regarding Assumptions and Presumptions

Member Boden began the discussion. Having presumptions can 

improve the consistency of decisions on claims. Presumptions can 

make it more likely that claimants with the same exposure and 

the same medical conditions will have the same compensation 

outcome. Another advantage of having presumptions is to 

streamline and expedite the decision-making process on claims. 

Presumptions can be more or less precisely targeted to 

accommodate the tension between epidemiological sensitivity and 

specificity. Presumptions should act as a floor on who gets 

compensated. Presumptions can also be either positive or 

negative. For example, you could have a presumption that says, 

unless a claimant had ten years of exposure or more and above a 

certain level of exposure, then it’s presumed that the exposure 

did not cause the disease.

There are provisions under the current Act where if the claimant 

does not meet the presumption, then the next step is to send the 

claim to an industrial hygienist (IH) or to an occupational 

medical expert. A presumption can be rebuttable. That means that 

if you meet the criteria of the presumption, somebody can still 

argue that you shouldn’t be compensated. The alternative is 

allowing for “irrebuttable” presumptions, where if a claimant 

meets the criteria, then it’s automatic that the claim gets 

compensated and nobody is supposed to be able to deny the 

claimant compensation. It’s important to keep in mind that 

presumptions have two parts, the exposure part and the disease 

part. 

For the post-1986 era, the Agency has decided that certain

occupations do not have enough exposure to cause disease. One of 

the issues that is not addressed in the Agency’s presumptions is 

the omission of specific tasks and potential for exposure. 
Current Use of Presumptions and Asbestos-Related Issues

Chair Markowitz gave the committee an extensive slide 

presentation on how the Agency uses presumptions and asbestosrelated issues. Chair Markowitz said that the Agency had a 

rationale for the 1995 circular having to deal with policy 

changes that DOE set in place. With regard to asbestos 

regulations, OSHA reduced the PEL to 0.1 in 1994. One of the 

problems with presumptions is that they may lump different

diseases together. Presumptions for asbestos may vary by disease 

outcome. Presumptions need to be separated out by specific 

diseases and linked to particular exposures.

Concerning asbestos-related diseases, Chair Markowitz said that 

so much is known that the committee ought to be able to come up

with some reasonable presumptions that would at least cover a 

certain part of the workforce and a certain subset of asbestosrelated diseases. The committee could come up with a list of job 

titles that could be expected to have had asbestos exposure.

Exposures are characterized by job title, tasks, buildings, and

calendar time. There is a tradeoff, however, as the more 

specific the committee gets, the more the committee limits the 

utility of the presumption. For example, if a person is a sheet 

metal worker from 1980 to 1995, that person was probably exposed 

to asbestos. A presumption should be relatively simple or easy 

to apply in order to be useful in the claims process. The 

committee agreed that getting more specific than job titles 

would not be helpful. Claims that do not meet presumptions may

go through the regular process. 

With asbestos exposure, the committee thought that it would be 

difficult to put a time limit on exposure. The Agency should be 

very generous in making determinations so that people are not

precluded from being legitimately compensated. 

Conditions like mesothelioma could have their own presumption. 

Separating out diseases in two or three classes would not be 

that difficult, assuming the only time-related variables are 

duration and latency. If someone does not meet the presumption 

then that person has to show evidence that his or her disease is 

related to exposure. DOL has already done something like a 

presumption in the 250-day criteria and 20 years latency. The 
presumption on asbestosis should address the three issues of 

’caused,’ ‘contributed,’ and ‘aggravated.’ The committee 

thought that a post-'86 presumption of a greater number of 

working days for asbestos exposure might work since asbestos 

exposure decreased over time.

Asthma-Related Issues

The Agency's 2015 circular on asthma acknowledges that asthma 

can be caused by a number of different exposures. The Agency 

seems to accept asthma claims if there is a physician's report 

linking it to exposure. If the asthma claim is filed after the 

DOE work has been terminated, then that claim requires some 

detail from the physician. If a physician writes a report saying 

that a claimant has occupational asthma, then that claimant 

doesn't need an exposure assessment. This allows a claims 

examiner (CE) to accept a claim without sending it to a contract 

medical consultant (CMC). Member Vlieger said that when a 

physician determines a claimant's asthma is occupational, the 

Agency will ask for exposure documents supporting that 

diagnosis. Chair Markowitz said that the Agency's own bulletin 

on asthma would seem to circumvent this possibility. Member 

Boden thought that it would be worthwhile for the committee to 

clarify what the presumption on asthma actually means in terms 

of accepting a claim. Chair Markowitz said that looking at some 

asthma claims that have been filed since the Agency's bulletin 

has been put into effect will give the committee insight into 

how it's applied. Member Dement suggested looking at the denied 

asthma claims that had a negative causation.

COPD-Related Issues

Chair Markowitz said that the procedure manual indicates that if 

a claimant was a smoker, then the claim needs to go to a CMC. 

Member Welch said that the building trades sent in comments to 

the Agency on the COPD presumption and supported putting forth a 

more up-to-date rationale related to COPD. Another point that 

Member Welch brought up was the fact that presumptions are 

something that the Agency can implement right away whereas 

changing policies and procedures takes much longer. Member Welch 

said that she would circulate the documents that the building 

trades put together to the committee.