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,

MARCH 14, 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

CLAIMANT COMMUNITY:

GARRY M. WHITLEY

FAYE VLIEGER

DESIGNATED FEDERAL OFFICIAL:

CARRIE RHOADS
Call to order

Ms. Rhoads called the meeting to order at 1:07 p.m. and Chair 

Markowitz welcomed everyone to the teleconference. 

Presumptions, Part B, EEOICPA

Chair Markowitz prepared a slide presentation with proposed remedies 

for alternative modifications to the current DOL policies regarding 

presumptions. The goal for the working group is to bring 

recommendations regarding modifications to the current policies to 

the full committee meeting in April. For most federal compensation 

programs, the eligibility criteria are quite broad. In the original 

Act, if a person worked for one year, was a member of a Special 

Exposure Cohort, and developed one of 22 cancers, they were eligible 

for compensation. Congress also established presumptions regarding 

silica. In general, factors considered in evaluating worker exposures 

involve four areas: duration, job title (proxy for intensity and 

frequency), calendar years, and latency. 

Asbestos is important because it was present at all of the sites and 

caused more occupational diseases in general than any other 

occupational toxin. It is addressed in several different locations in 

the Procedure manual. The asbestos-related diseases identified by DOL 

are asbestosis, asbestos-related pleural disease, ovarian cancer, 

laryngeal cancer, COPD, and lung cancer. DEEOIC accepts that asbestos 

was a common toxic substance that existed throughout all DOE 

facilities. While asbestos did exist at DOE facilities, the nature of 

an employee’s exposure would have varied based on different factors 

such as the period that the employee worked, the type of work 

performed, and the location of employment. Job tasks with a very high 

likelihood of asbestos exposure are mostly maintenance and 

construction related. Chair Markowitz identified DOL exposure 

presumptions for asbestosis. DOL addresses some asbestos claims under 

presumption criteria, such as ovarian cancer, asbestosis, and COPD. 

The current presumption for COPD is 20 years of exposure to asbestos. 

Chair Markowitz could not identify any rationale for the DOL 

durations of exposure in the exposure criteria in any DOL documents. 

Member Welch said she asked for rationales from DOL but never 

received anything that made sense to her.

Per DOL policies, at present, for a CE (claims examiner) to accept a 

level of exposure above low level, there must be definitive and 

compelling evidence to show that post-1986 DOE work had consistent, 

unprotected contact with asbestos or ACM. Evidence includes: IH

(industrial hygienist) monitoring, incident reports, documented 

abatement breaches, testimony or affidavits, or position 

descriptions. Any findings of exposure, including infrequent, 

incidental exposure, require review of a physician to opine on the 
possibility of causation. This is necessary as even minimal exposure 

to some toxins may have a significant aggravating or contributing 

relationship to the diagnosed illness. DOL does not say anything 

about pre-1986 exposures. Possible remedies for ARDs (asbestosrelated diseases) include: (1) Expand List A; (2) Rescind presumption 

of low exposure post-1986; (3) Pick calendar year as a cutoff that 

has a safety margin; (4) Consider including minimum exposure duration 

and latency in presumptions for all ARDs; and (5) For all claims that 

do not meet presumption criteria, have IH or CMC (contract medical 

consultant) review and decide on significance of exposure. 

Member Welch said that she thought there was a quantitative change in 

the number of exposures after 1986. Member Dement agreed that 

exposure levels have decreased over time. Perhaps as a presumption, 

it would make sense to require longer than 250 days. Member Vlieger 

said that workers were still working in areas with asbestos through

the 70s, 80s, and 90s. Factoring in non-DOE exposures is not on the 

table. A claimant does not need to have a diagnosis to file a claim 

for asbestosis. Some workers go to the Former Worker Screening 

Program or get a diagnosis from a pulmonologist. The CE should be 

able to accept a claim based on a presumption. The CE could look at 

the recommended presumptions and make a decision or send the case on 

for expert review. Member Whitley said that most people that file a 

claim for asbestosis have a diagnosis from a doctor. 

Job titles and work areas

With regard to job titles, Member Vlieger said that many people at 

job sites were not protected. As a production planner, she was able 

to go into areas while work was going on without being required to 

wear respiratory protection. Expediters and planers were not 

classified as production or maintenance, they are “exempt employees.” 

Member Welch said that, since there are so many job titles at DOE 

complexes, some claimants have been denied due to an incorrect job 

title. Maybe the Department could look at the actual work an employee 

performed rather than their job title. A person could have multiple 

job titles over the course of their career. 

The Former Worker Program at Queens College/USW has divided job 

titles into six occupational categories. One approach could be to 

have the CEs place workers into one of the occupational categories 

and presume asbestos exposure in a given timeframe. Member Dement 

thought the list of presumed jobs could be expanded. The SEM does map 

out job titles with similar tasks; for example, a master painter and 

a painter would both be included. Member Whitley thought having 

broader categories would help claimants.

Member Dement said that a hard date for asbestos exposure would not 

be useful. While exposures likely decreased over time, whether or not 
they decreased to be more than guidelines on a routine basis is 

questionable. Any presumption should have surrogates of exposure. 

Chair Markowitz noted that presumptions are also used when there is 

not enough information available to make a determination.

Asthma

Chair Markowitz said that a problem arises when former workers make a 

claim for asthma years after they have stopped their employment. DOL 

has the treating physician or CMC develop a rationale. Member Vlieger 

said that the acceptance of occupational asthma to this point has 

been varied, even if the physician said that it's occupational. A lot 

of administrative workers who get diagnosed with occupational asthma 

are turned down because of their job title. Perhaps the board needs 

to look at some asthma claims to make sure the process is being 

followed. Member Silver said that if there was an opportunity for a 

continuing education program, he would emphasize asthma. 

COPD and presumptions

The SEM committee is handling the issue of COPD and presumptions. 

Chair Markowitz said the procedure manual contains very little on 

this issue. Member Welch said that when someone who is a smoker files 

a claim for COPD, the DOL wants a CMC to look at the claim. There 

should not be a calendar year on smokers when it comes to COPD 

presumptions. Workers exposed to noxious fumes over an extended 

period of time can develop COPD. Member Dement said that COPD is 

largely underdiagnosed. A lot of people with COPD do not go to a 

pulmonologist and get diagnosed until later in life. Member Welch 

said that she would not put in calendar years in the presumption for 

COPD. For example, for some tasks silica exposure is still very high. 

Member Vlieger and Chair Markowitz thought that it would be a good 

idea to request the DOL policy memos related to COPD. 

Solvents and Hearing loss

Chair Markowitz reviewed the current DOL exposure criteria for 

solvent-related hearing loss. The December 23, 2016 memo from Dr. 

Stokes to Mr. Vance provided an overview three areas: (1) A review of

published studies on hearing loss and solvent exposures; (2) 

Individual studies that show that less than eight years of solvent 

exposure does not lead to hearing loss; (3) Hearing loss occurred 

after an average of 12.3 years of solvent exposure in one study, with 

the mechanism of hearing loss assumed to be the same for all seven 

solvents. 

Member Whitley and Member Vlieger agreed that the current continuous 

exposure criteria leads to many claims being denied. The 22 job