UNITED STATES DEPARTMENT OF LABOR 

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ADVISORY BOARD ON TOXIC SUBSTANCES AND WORKER HEALTH

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SUMMARY MINUTES

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NOVEMBER 14-15, 2018 

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The Advisory Board met in Room S-4215, U.S. Department of 

Labor, 200 Constitution Avenue, Washington, D.C., Steven Markowitz, 

Chair, presiding. 

MEMBERS

SCIENTIFIC COMMUNITY

JOHN DEMENT

GEORGE FRIEDMAN-JIMENEZ (via telephone) 

MAREK MIKULSKI 

KENNETH SILVER 

MEDICAL COMMUNITY

MANIJEH BERENJI

VICTORIA CASSANO 

STEVEN MARKOWITZ, Chair 

CARRIE A. REDLICH 

CLAIMANT COMMUNITY

KIRK DOMINA

RON MAHS 

DURONDA POPE 

CALIN TEBAY 

DESIGNATED FEDERAL OFFICIAL

DOUG FITZGERALD
WEDNESDAY, NOVEMBER 14, 2018

Call to order and introductions:

Mr. Fitzgerald called the meeting to order at 8:46 a.m. The abovelisted board members were in attendance. After a round of 

introductions, Julia Hearthway, OWCP Director, welcomed the committee 

and outlined the committee's charge.

Charge to the board, Julia Hearthway, OWCP Director:

Ms. Hearthway stressed that the entire program is looking to have a 

productive relationship with the board. Ms. Hearthway has already met 

with Chair Markowitz and discussed the issues that DOL is struggling 

with. DOL is looking forward to the board's help and advice on some 

very complex issues.

Energy Statute/Creation of the Board, Tom Giblin, Solicitor's Office:

Mr. Giblin's division provides legal support for the compensation 

program. EEOICPA (the Act) was passed in 2000 and was enacted to 

provide compensation and medical benefits for workers in the nuclear 

weapons industry. The board is to advise the Secretary of Labor in 

four areas: 1) Site Exposure Matrices 2) medical guidance for claims 

examiners (CEs) under Part E of the Act 3) evidentiary requirements 

for claims under Part B related to lung diseases 4) the work of 

industrial hygienists and staff physicians and consulting physicians. 

Another duty of the Board is to coordinate exchange of data and 

findings with the Advisory Board on Radiation and Worker Health.

Section 5 of RECA (Radiation Exposure Compensation Act) covers 

uranium miners. The miners are eligible for benefits under Part B and 

Part E. Whatever conditions have been accepted by DOJ, the DOL also 

accepts those same conditions under Part B. The miners can also file 

a separate claim under Part E. Certain named conditions like 

pneumoconiosis and pulmonary fibrosis are compensated under RECA.

If the Board makes a recommendation outside the statute, the agency 

can't implement the recommendation, unless Congress amends the 

statute. 

FACA review, Joe Plick, FACA Counsel:

Mr. Plick outlined the history of FACA and the basic rules for how 

federal advisory committees are to operate. In general, committees 

should be transparent and conduct their deliberations in public. The 

General Services Administration (GSA) has oversight over FACA. 

Meeting minutes are required for the meetings of advisory committees 

(a transcript does not count as meeting minutes). GSA regulations 
require that advisory committees stay within their specific charge. 

Subcommittees tend to be more formal than work groups. Actions by 

subcommittees are not official until the full committee has discussed 

them. 

Overview of EEOICPA, Rachel Leiton, DEEOIC Director:

Ms. Leiton gave a brief overview of the compensation program and the 

types of information that DOL seeks in evaluating a claim. Each part 

of the Act has different criteria. For example, under Part B an 

individual is eligible if they were a DOE contractor or 

subcontractor, an atomic weapons employee (AWE), a beryllium vendor, 

or a RECA recipient. Part E covers contractors, subcontractors, and 

RECA beneficiaries. Part B covers cancers, chronic beryllium disease, 

silicosis under specific circumstances, and RECA Section 5 awardees. 

Part E covers any condition as long as it can be determined that it 

was as least as likely as not caused by, contributed to, or 

aggravated by exposure to toxic substances in the work place. 

Eligibility for survivorship is also different under both Parts. 

Benefits under both Parts are also different.

DOL goes through several steps after getting a claim: verify 

employment (an affidavit by itself is usually not adequate), 

determine Probability of Causation (Part B claim), determine if a 

claimant falls in a Special Exposure Cohort (Part B claim), 

establishment of a medical condition (Part E), determine what toxic 

substances a claimant was exposed to (Part E), determine whether the 

level of exposure to toxic substances was related to the condition 

being claimed (Part E). DOL has several tools, like the occupational 

history questionnaire (OHC) and the site exposure matrices (SEM),that 

help in determining causation. DOL uses contract medical consultants 

(CMC) and industrial hygienists to evaluate claims. 

Claims are first processed through one of the regional resource 

centers around the country. The Final Adjudication Branch (FAB) in 

Washington, D.C. makes the final decision on claims. The FAB is 

composed of DOL employees who are separate and independent from the 

claims examiners. There is a reconsideration option where a claimant 

can ask for a decision by a different hearing representative if a 

claim is denied. Cases can also go to federal district court. New 

information can re-open a case as well as a claimant's inclusion in 

an SEC. Ms. Leiton will provide the board with information on how 

many cases have been reopened. Claimants have the right to an inperson hearing. 

Claims examiners are trained in how to be claims examiners - they are 

trained in the statute. DOL offers training modules, classroom 

training, online training, mentoring programs, etc. There is a 

training lead at the national office and there is an ongoing effort 

to make the training more robust and consistent throughout the 
country. The district offices have nurses. There is also a set 

procedure for forwarding issues to the Medical irector at the 

national office. 

The board expressed a strong interest in meeting the medical director 

and program toxicologist. The toxicologist is used as a resource to 

research the link between certain substances and medical conditions. 

The toxicologist has some epidemiological expertise. Proving 

causation is the biggest challenge and frustration reported by 

claimants.

There can be multiple claims in a case. An individual can have two 

cases, one under Part B and one under Part E. The Board requested 

information on the number of claims and payouts over the last several 

years under Part E. DOL is capable of pulling cases that have been 

denied, like asbestos cases under the Board's recommendation with 

regard to the presumptions related to asbestos. 

Ethics rules, Zachary Mancher, Ethics counsel:

Mr. Mancher provided an overview of the ethics rules for special 

government employees (SGEs): financial conflict of interest rules, 

bias rules, the Hatch Act (engaging in political activities while 

serving as an SGE), serving as an expert witness, lobbying, and use 

of a position on a board to lobby. 

The best rule of thumb for Board members is to always contact the 

ethics counsel if they have any questions. Mr. Mancher outlined the 

differences between bribes, salary supplementation, and gifts. 

Members cannot accept a gift that is made because of their official 

position or from anybody whose interests could be affected by the 

work of the agency. If a member feels like the optics of accepting a 

gift might be bad, the member should check with the ethics counsel. 

Board members may not use their title as a member of the Board to 

serve them personally. Board members may not use non-public 

information for their personal benefit. It is notable that members of 

the Board are not working on individual party matters before the 

agency. Mr. Mancher said that he will follow-up with board members 

about questions regarding serving as expert witnesses. 

Statutory Areas for the Board, Rachel Leiton, DEEOIC Director:

Ms. Leiton discussed the four areas that the statute specifies are 

within the Board’s scope.

Site Exposure Matrices (SEM)

The SEM was created in 2005 to help claims examiners research toxic 

substance data related to employees working at DOE facilities. The 
database was designed to help claimants and claims staff to determine 

the possibilities that exist for exposures. Mr. Vance will provide a 

more detailed presentation on the SEM. SEM is not used as a decision 

tool. It does not provide information on the extent of exposure and 

the amount of exposure. Paragon Technical Services maintains the SEM. 

There are 16,400 toxic substances used at 128 DOE sites in the SEM 

and 4,000 additional RECA sites. 

HAZMAP is a National Library of Medicine activity linking toxic 

substance exposures with diseases. HAZMAP is continually updated and 

incorporated into SEM. A lot of cases are now going to industrial 

hygienists (IH) for refinement. With regard to the Direct Link Work 

Process, sometimes DOL can link exposures to a work process instead 

of a labor category. 

Medical guidance for claims examiners

There are various sources of evidence that come to claims examiners: 

the claimant's doctor, consulting experts, second opinion physicians, 

referee consultants, social security disability examinations, and 

medical records. Oftentimes the opinion of an expert is going to be 

weighed more heavily than a general practitioner. DOL also reviews 

DOE's medical monitoring programs. DOL first tries to rely on 

information submitted by the claimants, then a CMC will examine the 

file if the diagnosis is unclear or there are other ambiguities. 

The statement of accepted facts (SOAF) includes diagnosis information

and other relevant medical information. The claims examiner often 

relies on the treating physician. DOL does have an accountability 

review process to review the quality of claims examiners’ work. The 

area of causation is looked at specifically, as well as the analyses 

conducted by claims examiners. The results of the audits are publicly 

available. 

The SEM does not address consequential conditions. The CE relies on 

physician opinions with regard to consequential conditions.

 

Evidentiary requirements for claims under Subtitle B related to lung 

disease

In order for DOL to accept a beryllium sensitivity case, a person 

must have one abnormal beryllium lymphocyte proliferation test 

(BeLPT) or one beryllium lymphocyte transformation test performed on 

lung or blood lavage cells, which shows abnormal findings. A 

beryllium patch test can also be used. This is a statutory 

requirement. 

For a pre-1993 chronic beryllium disease (CBD), a person must have 

any three out of five of the following criteria: 1) characteristic 
chest radiography or computer tomography abnormalities 2) restrictive 

or obstructive lung physiology testing or diffusing lung capacity 

defect 3) lung pathology consistent with CBD 4) clinical course 

consistent with chronic respiratory disorder 5) immunologic test 

showing beryllium sensitivity. 

The post-1993 criteria are different: 1) establishment of beryllium 

sensitivity 2) lung pathology consistent with CBD 3) CAT scan showing 

changes consistent with CBD 4) pulmonary function or exercise testing 

showing pulmonary deficits consistent with CBD 5) physician's 

rationalized opinion noting that biopsy findings are consistent with 

CBD will take precedence over the diagnostic data.

Chronic silicosis: 1) exposed to silica in the performance of duties 

for an aggregate of at least 250 work days during the mining of 

tunnels at a DOE facility located in Nevada or Alaska 2) latency of 

ten years 3) written narrative from a qualified physician that 

includes a diagnosis of silicosis. With regard to diagnostic evidence 

any of the following are needed: chest radiography interpreted by a 

physician certified by NIOSH as a B-reader, classifying the existence 

of pneumoconiosis of category 1/0 or higher, results from a CAT scan 

or other imaging technique that is consistent with chronic silicosis, 

or lung biopsies consistent with chronic silicosis. 

An "abnormal" BeLPT test result is required by the statute. It is the 

interpretation of the legal department at DOL that "borderline" is 

not abnormal under the statute. 

The work of industrial hygienists, staff physicians, and consulting 

physicians

Ms. Leiton described the role of IHs and consulting physicians in 

detail. DOL adjusts cases where IHs have found problems. DOL is 

looking to do quarterly audits of the IHs, but that process has not 

begun yet. The Board is welcome to help the Department in 

establishing a process for auditing the IH reports. There has never 

been an exercise in examining consistency among CMCs, i.e., if two 

CMCs are provided with the same causation criteria, would both CMCs 

come up with the same answer?

Procedural Manual (PM) Modifications and other changes, John Vance, 

DEEOIC Branch Chief, Policy, Regulations, and Procedures:

The PM is a 600-page document and is available on the DEEOIC website. 

Mr. Vance said that Chapter 15 on Toxic Exposure Causation Analysis 

is most relevant to the board. Also Chapter 18 on non-cancerous 

conditions and Chapters 24-26 describe the basic claims adjudication 

process. The website has a library of transmittals that describe all 

of the edits made to all of the versions of the PM. Changes are made 
to the PM through feedback from claims staff, policy analyst staff, 

stakeholders, and the Advisory Board. Litigation can also prompt 

changes to the PM. A lot of thought and staff resources go into the 

wording of the PM. Every recommendation that the Board provides 

undergoes a thorough evaluation. The PM strives for and relies on 

specificity.

Modifications to the PM:

-asthma language 

-adding benzidine to the list of toxins associated with bladder 

 cancer

-adding two new toxins to the hearing loss standard, carbon disulfide 

 and n-hexane

-adding a series of presumptive changes to pulmonary diseases

-changed latency periods for mesothelioma and ovarian cancer

-modified latency for pleural plaques

The standard on asthma is that a physician must offer a rationalized 

opinion on causation. The CE looks at whether the physician has 

offered a compelling and convincing argument about the mechanism of 

exposure that provides a linkage between that exposure and the 

asthma. A triggering exposure to a toxic substance needs to exist. 

DOL did not accept the Board’s recommendation on vapors, gas, dust, 

and fumes (VGDF).

Program Updates, Last 12 Months, Rachel Leiton, DEEOIC Director:

Ms. Leiton gave a wide-ranging overview of the program's activities 

over the last year. Over the last year, DEEOIC has reorganized its 

national office. One of the major things the program has done is 

create medical benefits examiners. One of the things that these 

benefits examiners do is handle claims involving home health care, 

but they also work on issues with medical bills. 

The program has centralized the assignment process for the Final 

Adjudication Branch (FAB). Staff is in the process of developing 

guides for hearing representatives regarding specific sites and work 

facilities around the country. Recent audits of the FAB have gone 

really well. 

DEEOIC has gone around the country doing two to three day workshops 

with NIOSH in order to reach out to potential claimants. There have

been about 19 outreach events over the past year. There is also 

outreach to medical providers. People are also using the internet 

more often in terms of uploading their case files and getting them to 

the claims examiners sooner. DEEOIC is continuing to work on getting 

claimants easier access to their claim files. 
DEEOIC has hired a new training lead to help improve and standardize 

training. One of that person's big projects is to implement changes 

in training related to presumptions. 

Staff is trying to come up with a way to more easily navigate the 

Procedure Manual through the website. 

Requests for Board Assistance, John Vance, DEEOIC Branch Chief and 

Rachel Leiton, DEEOIC Director:

Parkinson's disease and association with chemical exposures

Mr. Vance said that the program has encountered a lot of claims where 

many problems have presented themselves regarding the interchange 

between Parkinson's disease, Parkinsonism, manganism, Parkinson's 

syndrome, and other aliases being used by physicians. The program, in 

its Exhibit 15-4, has a presumption related to Parkinsonism. The 

presumption is out of date and in need of revision.

Redrafting and editing of the Occupational History Questionnaire 

(OHQ)

Mr. Vance said that DEEOIC was hoping for a more encapsulated set of 

recommendations as far as taking the existing draft OHQ and getting 

specific feedback as far as what changes to that draft the board 

would recommend. A draft of the revised OHQ will be provided to the 

board. 

Recommendation with regard to the radiogenic substances that are 

encountered at DOE facilities

DEEOIC has little information about non-cancer radiogenic health 

effects from these substances. There are types of non-cancerous 

conditions that can be associated with radiogenic sources such as 

chemical health effects. Uranium acute tubular necrosis is an example 

of one of these conditions. Some of these claims are denied because 

there is just not enough information on non-cancerous conditions 

linked to radiogenic sources.

Alias fields in the SEM

Alias names in fields in the SEM identify different terminology 

communicating the same diagnosis or condition. Chronic beryllium

disease and berylliosis is an example. DEEOIC hasn't been able to do 

cluster studies in terms of the current claimant population. The 

request to the Board is to review the aliases for accuracy and look 

for other aliases that the program should apply in certain ways. 
There are epidemiologists on staff at Paragon Technical Services, and 

Dr. Stokes who is on staff with the program is a toxicologist and an 

epidemiologist. 

Board Meeting Logistics:

The Board unanimously agreed to make its subcommittee meetings open 

to the public. Chair Markowitz asked the Board to think about how to 

effectively track public comments and incorporate those into the 

Board deliberations.

 

Ms. Rhoads is keeping a spreadsheet on public comments and actions 

taken by on the Board relative to those public comment topics.

As far as locations of board meetings, the previous board had met in 

Washington, D.C., Oak Ridge, Hanford, and Los Alamos. The Board's 

preference is to continue that practice. The previous meeting 

locations were decided by the number of claims by location. Tours of 

the facilities adds another day to the Board meetings. 

Chair Markowitz said that finding documents on the DEEOIC website 

relating to the Board's work is often cumbersome. Consecutive 

numbering of documents, like recommendations across meetings, could 

help lessen the confusion. Having a clear link to the Board's 

recommendations in a conspicuous location on the program website 

would be helpful for members of the claimant community and Congress 

in keeping track of the board's activities. 

Public Comments:

Michele Jacquez-Ortiz, Senator Tom Udall's Office

Ms. Jacquez-Ortiz read a prepared statement from Senator Udall into 

the record. Senator Udall said that the work of the board is vital 

for the compensation program. The Board is specifically designed to 

offer DOL a unique mix of perspectives on issues facing the program. 

Claimants have reached out to the Senator's office to request that 

DOL withdraw its proposed rule changes for EEOICPA and engage in a 

negotiated rulemaking process. The spirit of the law was to intend 

that the program be science-based and compensate legitimate claimants 

in a timely fashion.

Terrie Barrie, founder member of the Alliance of Nuclear Advocacy 

Groups

Ms. Barrie said that the previous Board made many excellent 

recommendations to improve the program. Ms. Barrie was concerned 

about why some of the Board's recommendations were rejected. It 

sounded more like a bureaucratic issue than an issue rooted in sound 
science. Ms. Barrie thought that the recommendations of the Board 

should outweigh the recommendations of the in-house DOL experts. Ms. 

Barrie said that DOL should accept all of the Board's 

recommendations. Ms. Barrie still hears complaints about the 

industrial hygienists, the toxicologists, and the CMCs. The board 

should review these complaints. The board should also review the new 

Office of Medical Benefits Review. The SEM also needs to be reviewed 

because it isn't comprehensive. Ms. Barrie asked to board to develop 

a presumption for DOE workers that worked with uranium based on the 

exposure that is covered under RECA.

Tee Lea Ong, Professional Case Management

Mr. Ong commented about the rule changes that were proposed three 

years ago. The proposed changes require a rethink. The Board should 

weigh in on the rule changes and see how they can be made more 

claimant-friendly. The board should start with most relevant changes 

and go from there. 

Donna Hand

Ms. Hand said that nobody knows what an abnormal beryllium test is. A 

borderline test would have to be abnormal. Dr. Armstrong has said 

that the asthma chart cannot be used with chronic beryllium disease. 

Ms. Hand also wanted to know what a lymphocyte process consistent 

with CBD is.

Vina Colley, Co-founder of National Nuclear Workers for Justice

Ms. Colley wanted the Board to push for workers at the gaseous 

diffusion plants to get compensation. Ms. Colley was worried that DOL 

is not getting accurate medical records of claimants. The board 

should have a meeting at Portsmouth. Ms. Colley expressed concerns 

about the bureaucratic nature of the procedure standing in the way of 

getting claimants compensated.

Josh Artzer, HAMTC

Mr. Artzer is the chairman of the beryllium awareness group at 

Hanford. Mr. Artzer asked if DOL's interpretation on borderline 

BeLPTs had a medical reasoning. Hanford has a lot of workers that 

have borderline tests. Mr. Artzer asked where the IHs get their data 

before providing recommendations and opinions. Workers at Hanford 

aren't being monitored at certain times, so there is an information 

gap. Hanford sees a lot of Parkinson's cases. Hopefully the board can 

come up with a claimant-friendly recommendation on Parkinson's. 

Adjournment:
Mr. Fitzgerald adjourned the meeting for the day at 5:15 p.m.

THURSDAY, NOVEMBER 15, 2018

Call to order:

Mr. Fitzgerald called the meeting to order at 8:43 a.m.

SEM - How it works (with discussion), John Vance, DEEOIC Branch 

Chief, Policy, Regulations, and Procedures:

Mr. Vance demonstrated the features of the public online SEM in 

detail. The database has tens of thousands of substances used at DOE 

facilities linked to different types of work done at those sites. The 

SEM also has a search ability for known health effects of toxic 

substances. Employees were not monitored for chemical exposures, 

unlike radiation monitoring. There is a public SEM and an internal 

SEM because the database is constantly being updated with new 

information which needs to be cleared by DOE before appearing in the 

public SEM. DOL works with many stakeholders to update the database. 

Changes to the SEM are frequently made from public submissions. 

Paragon Technical Services maintains the SEM. New information is 

vetted by Paragon and DOL staff. Mr. Vance said that he will provide 

the Board with information on the volume of public submissions and 

the turnaround time in incorporating those submissions into the SEM. 

The DOL research team is constantly collecting information about DOE 

facilities.

The Board was concerned about how the names of toxic substances were 

not consistent through time and how that could affect a claimant's 

exposure profile. The SEM has an alias search feature for these 

chemicals. The SEM can associate toxins with job tasks and diseases. 

Claims examiners are looking for those links between diseases, job 

tasks, site-specific information, and a claimant's diagnoses. Job 

category profiles will vary from site to site. A welder at Rocky 

Flats will have different exposures than a welder at Savannah River, 

for example. 

Claims examiners try to prioritize a claimant's exposure to the seven

toxins that will likely yield the highest chances of a compensable 

outcome. The number seven was chosen for practical purposes. Claims 

examiners attempt to create connections based on the case file to 

what they can search on the SEM. The SEM is not a tool to establish 

causation, it is just the first stage in the process of evaluating a 
claim, and the occupational history questionnaire (OHQ) is another 

important component of this process. The characterization of the 

exposure is up to the industrial hygienist. Then the IH's decision 

moves on to a medical review. DOL is operating on the best 

information available. 

The Board was concerned with the small amount of time that CEs appear 

to spend on a case. Perhaps the CEs should dig a little deeper. The 

claimant has the opportunity to provide more information if the 

program says it doesn't have enough information to accept a claim. 

There is an internal audit of the claims process. The Board will be 

provided with a link to the outcomes of that audit process. 

Member Cassano wanted an explanation of the interpretation of the 

statute of what a toxic substance is. The DOL interpretation differs 

from the NIH definition. Perhaps there needs to be a reinterpretation 

of the term "toxic substance." Mr. Vance said that the definition of 

a toxic substance is in the DOL regulations. 

With regard to personal protective equipment (PPE) like respirators, 

the IHs don't comment on the use of respirator; they are only going 

to be commenting on the characterization of toxins that have been 

identified for evaluation. Mr. Vance is going to get back to the 

board on whether there is a search screen in the SEM for personal 

protective equipment. 

 

Review of Prior Board's Recommendations, DOL Responses, Julia 

Hearthway, OWCP Director:

Ms. Hearthway said that she signed off on all of the DOL responses. 

All of the recommendations were carefully evaluated. The DOL gathered 

as much information as it could regarding the recommendations and the 

process was very meticulous and deliberative. The more support in 

terms of evidence and rationales that the Board gives for its 

recommendations, the easier it is for DOL to evaluate those 

recommendations. 

Review of Prior Board's Recommendations, DOL Responses, Board 

discussion:

Recommendations from October 2017

Recommendation 1: Circular No. 15-06 (issued December 17, 2014), Post 

1995 Occupational Toxic Exposure Guidance, be rescinded. DOL agreed 

with the board and rescinded this circular.

Recommendation 2: That DEEOIC ensure that the disease-exposure links 

identified by the sources listed in Table 3-1 of the Institute of 

Medicine (IOM) report, Review of the Department of Labor's SEM 
(2013), are included in the SEM. DOL said that they did not have the 

capacity to look at all the sources and asked the Board to narrow the 

list specifically to those sources that the Board finds most 

relevant. DOL does keep up with the International Agency for Research 

on Cancer (IARC) designations. Member Silver said there is a 

tradition of regulatory agencies of incorporating the work of others 

by reference. Member Silver also said that the Board needs to educate 

its colleagues at DOL what is and what is not scientific research. 

The Board agreed that there was no need for additional scientific 

analysis of the sources that the Board asked to be incorporated. 

Chair Markowitz said that it was reasonable for the program to 

identify a contractor that can assist them in incorporating a scaled 

back version of the IOM recommendations. Members Cassano and Berenji 

agreed to work on a more specific recommendation in this area in 

terms of what data to include. The Board believed that it would be 

useful and relevant to include selected data sources and make sure 

what is available from those data sources is incorporated into the 

SEM. 

Recommendation 3: That former workers from DOE facilities be hired to 

administer the OHQ. DOL responded that former workers within the 

complex were in fact hired by the organizations that administer the 

OHQ. DOL gives hiring preference to people who were employed at DOE 

facilities, but contracting laws prohibited hiring only former DOE 

workers. The Board believes the program has gone as far as it can 

with this idea.

Recommendation 4: That DEEOIC establish a process whereby the 

industrial hygienists may interview the claimant directly. DOL 

responded favorably to the recommendation and asked that the claims 

examiner be part of the process. The Board requested a status report 

of where the recommendation stands and how the recommendation will be 

implemented. 

Recommendation 5: That DOL review policy teleconference notes, redact 

confidential information, and post the information in a publicly 

available database searchable by topic area. DOL did not agree. The 

teleconferences are works in progress and do not represent a final 

policy or procedure. The Board understood that DOL's desire to not 

make the calls public is DOL's prerogative. 

Recommendations 6: That DOL explore the feasibility of prospectively 

having new case files made accessible to the claimant through a 

password-protected electronic portal. DOL accepted the 

recommendation. It is in progress and will take a few more years to 

complete. The key challenges is in terms of privacy protection and 

authenticating users.
Recommendation 7: That DOL re-organize its occupational physicians 

into an office comparable in organizational structure to the Office 

of the Solicitor of DOL, with physicians organized in groups to 

support OSHA, MSHA, OWCP, and other units, as well as to provide 

overall support to DOL. This goes beyond OWCP and into the overall 

DOL organizational structure.

Recommendation 8: That the entire case file be made available to both 

the industrial hygienists and the contract medical consultants when a 

referral is made to either, and not be restricted to the information 

that the claims examiner believes is relevant. The claims examiner 

should map the file to indicate where relevant information is 

believed to be. DOL disagreed and thought providing the entire case 

file would be excessive and overwhelming. DOL also thought that it 

would undermine the claims examiners as finders of fact. Member 

Cassano reinforced the notion that this is a critical defect in how 

the program operates and that access to the entire file is critical. 

Member Redlich thought that it might be prudent to just ensure access

to IHs and CMCs to specific pieces of information that they found 

helpful. All the exposure information already goes to the IHs. 

Recommendations from April 2017

Recommendation 1: Presumptions for asbestos exposure. For the 

cardinal asbestos diseases, the Board set out how much exposure there 

needed to be, what time period the exposures were, latency, and what 

overall job titles should be subject to a presumption. If someone was 

a pipefitter, a maintenance mechanic, or construction worker with a 

year's worth of work prior to 1995, then that meant the worker had 

sufficient exposure to meet the presumption for an asbestos-related 

disease. DOL accepted much of the recommendation on asbestos-related 

diseases. The biggest addition was lung cancer. For mesothelioma, a 

maintenance or construction worker at a DOE site for 30 days or more 

who were diagnosed 15 years or more after the onset of such work with 

malignant mesothelioma will be presumed to have had sufficient 

asbestos exposure that it was at least as likely as not that asbestos 

exposure was a significant factor in aggravating, contributing to or 

causing malignant mesothelioma. 

DOL asked the board to provide scientific support for adding 

additional job categories to the presumption outside of the 19 that 

the DOL already lists. The other issue is the 1986 date that DOL has 

in the Procedural Manual related to how much exposure members of the 

19 categories are assessed exposure to asbestos. Keeping the 1986 

date perpetuates a scheme that is no longer needed. The Board is 

going to work on a response to DOL on this issue.

Recommendation 2: Presumptions for work-related asthma. DOL agreed 

with the terminology used to describe work-related asthma. With 
regard to the medical criteria used to diagnose asthma, DOL agreed 

with the Board's recommendation. The Board recommended using the same 

criteria for diagnosing work-related asthma whether the claim is made 

contemporaneous with the period of DOE employment or after the end of 

employment. DOL modified some of the wording. The Board disagreed,

asking physicians to provide the mechanism. The Board will work on a 

revision to the recommendation. 

Recommendation 3&4: Presumptions for chronic obstructive pulmonary 

disease (COPD). The board recommended that DOL accommodate the 

scientific basis for workers in an industrial environment having 

exposures to vapors, gas, dust, and fumes (VGDF) as being at risk for 

COPD. The recommendation was in terms of exposure that a presumption 

could be based on five or more years of work at a DOE facility if 

they reported exposure to one of the twelve identified COPD agents. 

Or, have five years or more work in construction trades if the job 

title is linked to one or more toxic substances in the SEM. Or, if a 

worker reported five or more years of exposure to vapor, gas, dust, 

and fumes, and either their job title or job tasks linked them to 

classes of toxic substances including solvents, acids, caustics, and 

metals. DOL's response that the use of the phrase vapors, gas, dust, 

and fumes is overly broad and not legally permissible. But the 

program would welcome additional input on toxic substances 

encompassing VGDF that it should add to the COPD health effects list 

in the SEM. And five years of exposure is not enough. 

Member Dement wanted the board to take a harder look at COPD cases 

and see how the current criteria are applied. Chair Markowitz noted 

that he didn't understand that if DOL could apply a VGDF standard to 

asthma why they couldn't also apply it to COPD. Member Domina agreed 

that VGDF especially applies to workers in tank farm areas - which 

occurs across many sites. Member Berenji offered to do some 

additional research in the area of VGDF and drill down to more 

specifics in order to get DOL to move toward the Board's position on 

the issue of VGDF. Member Dement suggested that the Board examine how 

the SEM is being used in the COPD cases.

Recommendation 5: Science and technical capacity in EEOICP. DOL's 

response was that they have the capacity that they need. 

Recommendation 6: Interpretation of the Beryllium Lymphocyte 

Proliferation Test (BeLPT). The board recommended that the finding of 

two borderline BeLPT tests should be considered the equivalent of one 

positive BeLPT for the purposes of claims adjudication. DOL did not 

accept this recommendation, because it contradicts the law.

Recommendation 7: Quality Assessment of Contract Medical Consultants. 

The board requested that DOL provide resources to conduct a quality 

assessment of a sample of 50 contract medical consultants. DOL's 
response was that this is already being done on a quarterly basis. 

The board did not think that an internal review by a medical director 

was the same as an external review by the Advisory Board. 

 

Recommendations from June 2017

Recommendation 1: Presumption for solvent-related hearing loss. The 

recommendation was to remove the 1990 date, expand the number of job 

titles that were eligible for the presumption, increase the number of 

solvents, and remove the consecutive years of exposure required, 

replacing it with cumulative years. DOL did not accept the 

recommendation. Chair Markowitz proposed sending the recommendation 

to a subset of the Board to consider DOL's lengthy response and 

decide whether a response from the Board is warranted. 

Recommendation 2: Definition of chronic respiratory disorder. The 

Board said that a person that has significant breathing symptoms for 

three months or more - that that would constitute history of a 

chronic respiratory disorder. DOL agreed with the recommendation. The 

Board is going to consider the wording of DOL's response.

New Issues:

Parkinson's Disease

Member Cassano offered to take the lead on looking into the issues 

around Parkinson's and related diseases. 

Draft OHQ

DOL asked the board to provide input into the new questionnaire.

Non-cancerous health outcomes associated with radiological materials 

and the issue of aliases

The task is to look at the literature and make suggestions about how 

the literature may fit into the current SEM and how it may affect 

Procedural Manual modifications. Chair Markowitz suggested that this 

task be tabled along with looking into aliases and instead focus on 

items that the Board wants to focus on as a new board. He felt that 

the Board lacks the resources in terms of person power to tackle 

these issues. Dr. Markowitz asked for a tally of the numbers of 

aliases, so that the Board can judge how much work is required to 

assist DOL in this task. 

 

Other issues

Member Redlich mentioned review of cases. It would be helpful to 

review what CBD Part B claims there have been. Member Cassano thought 
the Board should look at some presumptions for organic solvents as 

well as looking at claims that involve those solvents. Chair 

Markowitz proposed that the Board take an independent look at the CMC 

and IH quality reports. Importantly, looking at some claims to see 

how the program works will be helpful. Member Redlich proposed 

looking at numbers of accepted claims versus reasons for denial with 

regard to all pulmonary conditions. The Board also wants to look at 

all cancers under Part E minus those that were successful under Part 

B.

Member Silver suggested that the Board not give up on the idea of 

getting an outside contractor to help in reviewing cases. 

Mr. Vance said that there is categorization of documentation in the 

case files, if the file is indexed properly. 

The Board is interested in the ability of the CEs to generate an 

accurate statement of accepted facts. Member Dement expressed 

interest in looking at some difficult cases in greater detail (for 

example, presumption cases that were denied).

Chair Markowitz said that the Board will form provisional working 

groups on the above tasks; they won't be official subcommittees at 

the moment.

DEEOIC Ombudsman, Malcolm Nelson:

Mr. Nelson provided an overview of the tasks and duties of the 

Ombudsman. Mr. Nelson's office sends a report to Congress every year 

of the number of complaints against the program and the most common 

difficulties encountered by claimants. Mr. Nelson said that his 

office does a lot of outreach around the country to claimants and 

potential claimants. The only way for a claimant to know whether or 

not his condition is compensable is to file a claim. Mr. Nelson said 

that he often encounters first responders like firefighters that have 

a difficult time finding their exposure potential in the SEM. First 

responders that could be covered under the DEEOIC program have 

expressed in interest in establishing presumptions for first 

responders. 

 

Office of Worker Screening and Compensation Support, DOE, Greg Lewis:

Mr. Lewis said that what his office does for the compensation program 

is provide records. These records are provided for individual claims. 

The office also works with DOL and NIOSH on large-scale site 

characterization projects. Mr. Lewis explained how his office goes 

through filling record requests. Records may be distributed across 

several sites. The turnaround time on record requests is less than 60 

days. The average is 34 days. Many times records are discovered and 
NIOSH and DOL will go back to look at denied claims and see if there 

is new information in the records that could reverse a decision on a 

claim. 

New Issues Discussion Continued:

SEM

Asking DOL how the CEs deal with aggravation and contribution. The 

board wants a written response from DOL on how the program addresses 

aggravation and contribution. 

Evidentiary requirements

DOL responses on the Part B conditions. 

Work of industrial hygienists

The Board will examine the audits. Dr. Armstrong has been requested 

to participate in the Board's next face-to-face meeting. Chair 

Markowitz requested toxicology reports in order to get a sense of 

what they look like. 

Radiogenic substances

The Board will hold-off on pursuing this area.

. 

Health effect aliases 

The Board will hold-off on pursuing this area, pending further 

information from DOL on the numbers of aliases.

Public comments

The board will contemplate how to integrate public comments into its 

discussions. 

Next meeting

The next face-to-face board meeting will be in either March or April. 

An email will be sent out to board members with potential times and 

locations for the next meeting. 

Adjournment:

Mr. Fitzgerald adjourned the meeting at 3:48 p.m.

I hereby certify that, to the best of my knowledge, the foregoing