The Newsletter is the Source of Official Trust Policy Statements
Newsletter is the Source of Official Policy Statements
It is important for all Trust constituencies to note that the Manville Trust Newsletter is the primary means by which official Trust policy is communicated to our constituencies. Please review the Newsletter carefully, and note any policy statements that impact the manner in which you process your claim(s). Trust Newsletters, indexed by topic, are available on the Internet at mantrust.org, beginning with the April 1, 1996 issue.
The Trust's subsidiary and claims resolution facility services provider, the Claims Resolution Management Corporation (the "CRMC"), will respond to your questions about the Trust, its operations and policies at inquiry@claimsres.com.
CONTENTS:
CHANGE IN MEDICAL AUDIT IMPACT FOR FIRST TWO QUARTERS OF 1997
In our Newsletter of March 14, 1997 (see Newsletters on the Trust’s homepage at http//www.mantrust.org), the Trust announced a change in the way medical audit response and pass rates are applied. Through the end of 1996, the results of medical audit were calculated on a rolling four-quarter cumulative basis. Beginning in 1997, the medical audit results will be calculated on the specific population eligible for payment in a given quarter and will affect only that population.
It is important to note that, for any claims subject to medical audit, deficiencies must be cured either before or contemporaneous with providing a response to medical audit. In other words, for a claim that has not been placed into one of the seven disease categories, and which therefore receives a notice of deficiency, no further processing, including medical audit review, will be done until the deficiency is cured. The Trust does perform both random and targeted audits on such claims, but only after the deficiency is cured.
RE-ESTIMATION OF PRO RATA SHARE COMPLETE -- NEW OFFERS TO RESUME
At the Trustee meeting on February 18, 1997, the Trustees determined that it was prudent to suspend the making of new claim payment offers until review of the 10% pro rata share payment level had been completed. That review was necessary in light of the accelerated new claim filing rates seen in 1996, especially during the last quarter of that year. At the February meeting, it was estimated that the updated forecasts of future claim filings, and the subsequent valuation of the Trust’s estimated liabilities versus its estimated assets, would take between 12 and 16 weeks.
On May 28th, Trust senior staff and Managing Trustee Robert Falise met with the Selected Counsel for the Beneficiaries ("SCB"), the Representative of Future Claimants and the Special Advisor to the Trust, to share with them more recent data and analysis of the Trust’s liabilities and assets.
After extensive review, the Trustees have concluded that a new prediction of between 450,000 and 650,000 claims to be filed from 1997 to 2049 has been mitigated by a combination of factors, including the impact of the medical audit program and strong growth in the value of the Trust’s assets. Thus, at their meeting on June 10th, the Trustees approved a resumption of new Trust offers based on the 10% pro rata share payment.
As a result, the Trust will make settlement offers (including denial letters) on eligible claims to FIFO number 256,000 (encompassing claims filed through August 1995). We recently extended the response deadline for medical audit to June 15th. After that date, as soon as a firm’s response rate reaches 90% and a sufficient number of claims have been evaluated to determine the pass rate, offers and deficiency notices will be sent in accordance with those results.
REQUIREMENT TO DOCUMENT BILATERAL LUNG DISEASE FOR RECATEGORIZATION
Beginning with our April 10, 1996 Newsletter and again in the July 29, 1996 Newsletter the Trust clarified its requirements regarding documentation to demonstrate that a claimant has bilateral lung disease as required to meet the categorization criteria specified in the Trust Distribution Process (TDP).
Since August 1, 1996 all recategorized claims have been held to this standard for documenting bilateral lung disease. Claims recategorized in 1996 and 1997 have been and will continue to be recategorized to lower categories if the medical reports first reviewed during 1995 do not specify bilateral lung disease. The result is that, because of a recategorization request, many claims categorized prior to the implementation of the specific bilateral language standard, have been recategorized to 0 because of the lack of a diagnosis of bilateral disease process
To reiterate, categorization criteria for five of the seven asbestos-related injury categories in the TDP REQUIRE that the claimant’s lung disease be DOCUMENTED AS BILATERAL. The presence of bilateral lung disease is so fundamental and important to the accuracy of the diagnosis for categorization purposes that the report of the confirming medical procedure, such as the x-ray or CAT scan, must either use the term "bilateral" or must affirmatively specify/clearly imply that the disease process is present in both lungs. The Trust adopted this requirement not only to comply with the terms of the TDP, but also because the Trust believes that except in rare cases (such as claimants who have undergone full lung resection), unilateral disease process indicates that the disease is unrelated to asbestos exposure. Bilateral findings significantly increase the likelihood that a diagnosis of an asbestos-related disease is well-founded. This information is, therefore, critical to ensuring that the Trust compensates only bona fide asbestos-related injuries.
CRITERIA FOR REJECTION OF NEW CLAIM FILINGS
New claim filings may be rejected by the Trust and returned to the filer if mandatory information is missing/incomplete on the POC form, or if the given data is contradictory.
Smoking History
For example, two of the most common problems with new claims involve the claimant’s smoking history (Part 4, Section B) and the litigation section (Part 6). Filers must include all relevant history data: the date the claimant started smoking, the date stopped (if he/she has), and specific "packs per day" information.
Evidence of Lawsuit
Per the instructions on p.17 of the claim form, if the claimant has filed an asbestos-related lawsuit, the Trust requires a "copy of the face page" of the complaint. If more than one complaint has been filed, the filer need only submit a copy of the earliest complaint. The POC form will not be processed without it.
Exposure Information
Occasionally, filers are confused over the correlation between the "most significant" exposure dates and the Employment Exposure History. We ask that the full date range listed in the former (Part 5, Section A) be elaborated on in the latter (Part 5, Section B). The Trust’s reasoning behind this requirement is straightforward. Simply stated, to accurately assess a claim it is necessary to know where the claimant worked, what he/she did, and which Manville products he/she was exposed to. For determining the severity of asbestos exposure, it is important to have these basic facts for any period when the claimant was around Manville asbestos, but especially during the time of "most significant" exposure. Once again, problems with these sections may result in rejection.
If the claimant was exposed to Manville products as a bystander (i.e., as a family member or a building occupant), Part 5, Section B should not be completed. Instead, skip to the Bystander Exposure History (Part 5, Section C) to provide a thorough description of the exposure. In the case of family exposure, the filer must also complete the bottom half of p.16. Claimants exposed as building occupants should include the names of the Manville products to which they were exposed.
Product Information
The product information in the Employment Exposure History should be as specific as possible. For example, "all products" and "asbestos" are not acceptable answers. Please list specific products like "Manville shingles" or "Thermobestos."
Other Required Information
Aside from these problems, any other missing/incomplete information may be grounds for rejection. Internal discrepancies will also stop a claim from being processed. (For example, Jon Doe’s date of birth is listed as 1941, and yet he started smoking in 1940. Or, the claimant is deceased and neither date of death, nor personal representative is given.)
Finally, please take care to include legible medical documentation. Also, the claimant’s name or Social Security Number must be on this information, along with the name of the doctor/facility questions about filing claims should be directed to the Claims Processing Department.
RESPONSES TO MATRIX OFFERS AND DEFICIENCY LETTERS
After matrix review of a claim has been completed the claim’s FIFO number has been reached in the queue, and the medical audit requirement has been satisfied, the representing law firm (or pro se claimant) will be notified of the results in one of two ways:
1) A check will be issued with a notation that the categorization was based on the results of categorization, recategorization or medical audit; or 2) A deficiency notice will be sent describing the reason(s) why the claim could not be categorized.
Endorsement and deposit of a check is deemed a settlement in full for the claim, subject only to additional payments if the pro rata TDP payment share is increased for all claimants.
The TDP provides three options for claimants who wish to dispute the Trust's categorization of their claim and/or the medical audit results. The first and most frequently requested of these options is submission of new information with a request for recategorization. If no new information is available, the claimant can request categorization arbitration by returning the check form (with the check marked "void"), or the deficiency notice, with the AD1 option selected. An ADR election packet will then be sent to the firm or pro se claimant. The claimant will have an opportunity to prepare a position paper, which will be sent to the arbitrator along with the Trust's position paper. If the arbitrator agrees with the claimant's position, the decision shall be binding upon the claimant and the claimant shall not be entitled to any individual evaluation. If the arbitrator does not agree with the claimant's position, the claimant may elect individual evaluation.
The third option, individual evaluation, may also be requested instead of (rather than after) AD1, but this option is appropriate only when the dispute involves value rather than categorization. For instance, if the claimant acknowledges that their medical evidence does not meet the Categorization Criteria for any of the Scheduled Diseases, but nevertheless thinks that the particular facts of their claim merit some compensation, the individual evaluation option is the correct choice. In order to select that option, the check form (with the check marked "void") or the deficiency form should be returned to the Trust with the IND response marked. Claims are individually evaluated in the order in which these requests are received, and there currently is a substantial backlog of claims in the individual evaluation queue.
WHITE LUNG ASSOCIATION REPRESENTATIVES VISIT TRUST HEADQUARTERS
On June 12, 1997, a group of 17 representatives from the White Lung Association led by Paul Safchuck, WLA’s President, visited Trust headquarters in Fairfax, Virginia, and spent several hours with Trust senior staff discussing the status of Trust operations and the nature of the relationship between the Trust, the claimants, and their legal representatives. David Austern, Trust General Counsel, explained that the Trust was constrained by the Model Rules of Professional Conduct from any direct communication with claimants who have a legal representative. While we can provide the current status of a claim directly to the claimant, any discussion regarding the negotiation of the claim’s value, or the nature of an attorney’s representation of that claim, must come from the claimant’s attorney.
After a working lunch, the group toured the offices and met a number of Trust staff as they were shown how a claim is received, screened, processed, evaluated and paid.
Questions have arisen recent months as to whether the Trust’s arbitrators in valuation arbitrations should be allowed to consider either historic settlement averages (on a national, jurisdictional or law firm basis) or verdicts in the tort system for allegedly comparable claims. The TDP mandates consideration of all these factors in the individual evaluation process but is silent as to whether the parties can submit such information in a valuation arbitration.
In an effort to prevent controversies about the relevance and comparability of settlement averages and verdicts as well as disputes about the discoverability of such information, and in recognition of the fact that evidence of this nature is not admissible in the tort system, the Selected Counsel for the Beneficiaries have recommended to the Trust that it adopt a policy, for the present, that neither party be allowed to submit such evidence to the arbitrator in a valuation arbitration. The Trust has decided to adopt this recommendation and, accordingly, is advising claimants in valuation arbitrations that discussion of prior settlements and verdicts is not permitted in either party’s arbitration submissions.
On April 16, 1997 the Trust disqualified all of the approximately 26,000 pending claims filed by the Maritime Asbestosis Legal Clinic ("MALC"), with the exception of a few exigent health claims. The Trust stated that, among other things, the documentation submitted in support of the claims was inadequate and that the claims lacked both credibility and reliability. Thereafter, in early June, certain MALC claimants filed two largely identical civil actions against the Trust and the Trustees alleging breach of fiduciary duty and breach of contract (among other claims). These actions were filed simultaneously in the United States District Courts for both the Eastern and Southern Districts of New York. As this Newsletter goes to press, it appears the actions will be consolidated before the Honorable Jack B. Weinstein in the Eastern District of New York.