Summary: Advisory Board Meeting 04/24-04/25 2019

The Advisory Board on Toxic Substances and Worker Health, which advised the Department of Labor’s (DOL) Secretary on Part E and Part B lung claims, held an in-person meeting in Augusta, GA, April 24-25, 2019.

DOL informed the public that Dr. Victoria Cassano resigned from the board.  This brings the board to 11 members, down from the original number of 15.  The public will have an opportunity to nominate someone from the medical or scientific communities to replace Dr. Cassano.  DOL also began the process to renew the board’s charter, which expires in July.

DOL instituted a new process for requests from the board.  The board must now fill out a form detailing their request for documents or other information, cite the statutory language which the request falls under (e.g. review of the Site Exposure Matrix), provide the reason they want this information, and how the board intends to use the information.  The board didn’t think this would improve the process, noting that they are still waiting on responses the requested during the November 2018 meeting.

Rachel Leiton, Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) reported that the Procedure Manual was updated this month.  She noted that new language was added in a couple of sections.  Another revision to the Procedure Manual will be issued soon.  This revision will include the changes adopted in the Final Rules.

Board members offered their willingness to provide advice on future changes to the Procedure Manual and other program guidance.  They also offered to review training materials for the claims examiners.  DEEOIC did not make a decision on this offer.

Malcolm Nelson, EEOICPA Ombudsman, presented to the board.  He explained that his office encounters claimants who have a hard time understanding the complex program and don’t have a basic understanding on how to begin.  As an example, he said that while some may access the Site Exposure Matrix (SEM), they don’t know how to use the filters to refine their search.  He also receives complaints that the SEM is not accurate.  He also stated that he hears complaints about the hearing loss presumption.  Claimants will ask him, “What happened in 1990?” that would justify DOL’s use of that date as the cut-off date.  Mr. Nelson informed the board that DEEOIC provided a response to the concerns in the 2017 Ombudsman’s report to Congress.  That response can be found here, https://bit.ly/2LbSrXX

DEEOIC asked the board for guidance on Parkinsonism and Parkinson’s Disease and Non-cancer Effects of Radiological Substances. The board’s presentations on these two topics can be found under “Scheduled Presentations” on the board’s website, https://bit.ly/2VBxbig

At the last meeting in November, the board requested DEEOIC provide them with copies of 100 case files to determine if the cases were decided fairly and using the best scientific and medical principles.  The board members received 20 of the claims two weeks before the meeting.

A review of those 20 claims showed that reports from the industrial hygienists were confusing and sometimes contradictory.  The reports include language concerning exposures after 1995.  This language originally was developed for Final Circular 15-06.  DEEOIC rescinded this circular and the board is concerned about the use of this language in the industrial hygienists’ reports.  The board had a long discussion about this language.  They were concerned that the language stating there is lack of monitoring data would translate that there was no risk of exposure to the worker.  They also questioned why the industrial hygienists used text books as reference material.  The board noted that text books do not provide the “specificity of levels” of exposures and are already outdated by the date of publication.

The board approved two recommendations to Secretary Acosta,

• To provide the board with a technical support contractor to assist with reviewing claims.
• Recommended that the industrial hygienists’ reports provide supporting documentation, other than the text books currently used, when explaining the levels of exposure which a worker may have experienced.

The board intends to have a teleconference in the summer with the next in-person meeting to be held  in the fall of 2019.  Location to be determined at a later date.