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Meeting Recap: DOL Advisory Board on Toxic Substances and Worker Health

July 14, 2022

July 14, 2022

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Dr. Steven Markowitz, Board Chair, called the virtual meeting of the Advisory Board on Toxic Substances and Worker Health (ABTSWH) to order, and noted that this would be the last regular meeting of this Board’s term as currently constituted. The U.S. Department of Labor will announce the new Board’s composition this month. It is expected that several existing Board members will likely carry over to the new Board’s term. It was also noted with gratitude, the six years of service of Dr. Ken Silver, who is retiring from the Board at the conclusion of its current term.

The Board reviewed and discussed the recommendation that three “borderline” beryllium tests should be sufficient for the establishment of a presumption of Beryllium sensitivity. The Board voted to accept, and recommended that the DOL amend its policy guidance to allow that three borderline tests constitute sufficient proof of beryllium sensitivity in EEOICPA claimants.

The Board discussed in some detail how for some claimants’ specific information relevant to toxic exposures, such as exposure to asbestos, did not consistently align with the Site Exposure Matrix (SEM) as currently written. The consensus seemed to be that in a number of cases, the DOL Claims Examiners may be relying too much on whether a particular job title had toxic materials associated with it in the SEM, when the facts of a claimant exposure, when not found in the SEM, seemed to be determinative for a denial of benefits.

In other discussions related to Board members’ recent review of claimant files supplied by the DOL, it was noted that claims rejected for a diagnosis of pneumoconiosis, since the medical evidence did not also specify pulmonary fibrosis, were flawed. The Board’s medical doctors discussed that in their medical opinion pulmonary fibrosis does not normally exist without some related pulmonary fibrosis, and therefore such claims should have been approved.

The Board also discussed why the DOL Claims examiners seemed to only develop causation related facts related to seven toxic substances for a claimant, when in many instances additional exposure to more toxic substances were likely present in their work. Jon Vance, DOL Policy Director for EEOICPA, essentially stated that given limited resources and thousands of claims, the DOL settled on the seven most likely toxic substances present for Claims Examiners to focus on in developing a claim.

Dr. Markowitz initiated a discussion on whether the Board, or a future Board, should create a more robust protocol for dealing with public comments submitted to the Board. It was recommended that the next Board will take up the issue.

The Board did request that the DOL again provide a current list of the top 10 conditions representing the largest number of DOL approved medical conditions.

Specific Board meeting minutes will be posted on the DOL’s website when they become available.