Summary: DOL Advisory Board teleconference 09/04/19

The Advisory Board on Toxic Substances and Worker Health held a meeting via teleconference on September 4, 2019.

The Department of Labor announced that a new version of the Procedure Manual (PM) will be published by the end of this month.  The board and a member of the public noticed that the presumptive labor categories for asbestos related diseases were removed from the last version of the PM 3.0 issued in May 2019. Rachel Leiton said her office is revising the language for the new version of the PM.  She did not say whether the presumptive labor categories will be re-included in the new version.

The board had requested statistical information on the number of denied claims which were reviewed and reopened after a change in policy.  5% of claims were reopened.  The spreadsheet DOL provided to the board was not available on the board’s website at the time of this publication.  A screenshot of the document is provided below.

DOL provided other spreadsheets regarding approved claims as requested by the board.  Board members provided observations on the statistics noting, for example, that some of the kidney disease claims could be claims for uranium workers which were covered under the Radiation Exposure Compensation Act (RECA).  There was a discussion of the difference of the medical coding between ICD-9 and ICD-10. ICD-9 was more general whereas ICD-10 provides more specificity of diagnosis.  The board will form a work group to study this data further.

DOL informed the board that in 2018 approximately 26% of claims were sent to an industrial hygienist (IH) for review. DOL held training sessions this summer for the claims examiners for when to send a claim to an IH.

The board asked for an update on implementing the policy which will allow an IH to talk to a worker about his exposures and the processes his/her labor category would be involved with. Ms. Leiton responded that the new PM will allow that. She also explained that it may not be the IH who is reviewing the claim but that, instead, the IH would submit questions to one of two industrial hygienists who are employed directly by DOL who would then ask the questions. She also indicated that terms of the IH contract may prevent the IH working directly on the claim review from speaking directly with the worker even though DOL and the board agreed to have the claims examiner (CE) on the call. Ms. Leiton will check into that further.

The board went on to discuss claims. The board requested and received 80 claims. Audio was lost for about 5 minutes so this summary is a bit incomplete.  The board reported that they found serious concerns with some of the claims they reviewed.

For instance, there was a lengthy discussion about the IH reports included in some case files.  One case was for a sheet metal worker with a lung disease.  The board members were concerned that the CE, IH, as well as the contract medical consultant (CMC) did not consult or use the information included on the Occupational History Questionairre (OHQ). The claim was originally denied. One board member said that the labor category of sheet metal worker was synonymous with asbestos exposure and that it “was remarkable that the IH and CMC” missed that link.  It was fortunate for the claimant that the former worker health surveillance program identified the link and the claim was finally approved.

The board members also expressed concerns about the wording of IH reports. They did not understand what “significant exposure at low to moderate levels” meant. They wanted to know if this statement is based on current Occupational Safety and Health Act (OSHA) standards or if the OSHA standards when the worker was exposed were used. What if the worker as employed before OSHA was enacted?  What standards were used to determine the level of exposure?

The board explored the possibility of referring those claims denied by DOL because of omissions made by the IH back to DOL for additional review.  Ms. Leiton expressed concerns that this could interfere with the adjudication process and that the claimant has the opportunity to present this type of evidence during the appeals process.  Mr. Doug Fitzgerals suggested that the board could, instead, identify the problem areas (IH reports, CMC reports, research of the Site Exposure Matrix, etc.) and provide that information to DOL so that they can conduct their own audit.

The board also discussed the location of the on-person meeting in November; Paducah, KY was suggested because of the number of claims filed for that site.  Cold War Patriots will keep you updated on the developments.