Newsletter is the Source of Official Trust 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:
SPIROMETRY REQUIRED FOR CATEGORY 3 ASBESTOSIS CLAIMS
During the past year, the Trust has been researching methods to review pulmonary function test ("PFT") results to determine whether such tests were performed in adherence to standards set by the American Thoracic Society ("ATS"). Standards for conducting such tests have been published since 1979 [1], and when full PFT information is supplied, it is possible to determine whether such standards were followed. However, absent this information, it is impossible to determine the reliability of PFT results. Therefore, effective December 2, 1996, for all PFT results submitted on or after that date, whether for newly filed claims or for claims requesting recategorization, the Trust must receive evidence that ATS standards have been adhered to by the facility which conducted the PFT.
Before referring clients to a PFT facility, we urge you to verify that the facility is knowledgeable about and adheres to ATS standards. For example, the ATS requires, in part, full spirometry printouts and a minimum of three acceptable trials. Thus, a PFT report must include numerical data and tracings for three flow-volume loops and three volume/time exhalation curves in order for the Trust to determine that ATS standards were followed. Specifically, the Trust will not accept PFT results which contain data only for the "best" test result or the average for all tests given. For Category III claims (disabling bilateral interstitial lung disease), the Trust Distribution Process requires (in addition to other criteria) that the claimant document disability or impairment evidenced by total lung capacity (TLC), forced vital capacity (FVC), or diffusing capacity (DLCO) of less than 80%. Where the claimant's DLCO is the only PFT result which reflects a score of less than 80%, pursuant to ATS standards, the Trust requires a report reflecting a minimum of two acceptable DLCO tests, a breath holding time for each test of nine to eleven seconds, and that all measured values have been corrected for the claimant's hemoglobin value.
For PFT results submitted prior to December 2, 1996, the Trust is developing guidelines and audit mechanisms to determine the reliability of those results, and will announce those guidelines shortly.
CERTAIN PULMONARY FUNCTION TEST FACILITIES
Some claimants have had PFTs conducted by certain facilities which have been the focus of an investigation by the Trust concerning the practices and procedures used by the facility. This investigation has included, among other things, the examination of depositions of employees of these facilities and certain corporate and financial statements filed by the facilities or the organizations with which they are affiliated. Based on this investigation and other factors, the Trust can no longer use PFT results provided by these facilities in the categorization of claims. The facilities are:
- Pulmonary Advisory Services, Inc .- Jackson, MS
- Pulmonary Advisory Services of Louisiana, Inc. - New Orleans, LA
- Pulmonary Testing Services, Inc. - Grand Bay, AL & Pascagoula, MS
PFTs from these facilities will not be considered by the Trust in assigning a claim its scheduled value; other medical evidence will be considered and the claim will be categorized accordingly.
Individual Evaluation of Category I Claims
Claimants who have previously received a Scheduled Value Offer for Category 1 (bilateral pleural disease), but have rejected it and requested that their claim be individually evaluated, will be offered a final chance to accept their matrix offer before beginning the individual evaluation process. The Trust's previous Scheduled Value Offers met the TDP criteria for Category 1 under the Trust's policies that were in effect at that time. If, however, the courts in your jurisdiction do not recognize asymptomatic pleural disease as compensable or do not recognize pleural changes as an "injury", the Trust will individually evaluate this claim based on the governing jurisdiction -- this may result in a zero value offer from individual evaluation.
The TDP directs that "Individual evaluations of claims will be based on the CRP [Claims Resolution Procedures. Annex B to the Trust Agreement of the Manville Plan of Reorganization] Factors affecting the amount of damages, including without limitation, disease, age, current settlements and verdicts in the tort system in the claimant's jurisdiction..." [TDP Section C.3.] The CRP further directs that the Trust, "shall evaluate each individual claim based upon all relevant factors of the traditional tort principles of damages of the state law applicable to the cause of action ..." [CRP Section II.B.6.]
If a claimant/attorney determines that the offer resulting from individual evaluation could be adversely affected by the applicable jurisdiction's rulings on this issue, the Trust will allow withdrawal of the request for individual evaluation. Approximately 30 days prior to the assignment of a Category 1 claim to a negotiator to begin individual evaluation, the Trust will notify the claimant/attorney in writing. During this 30-day period, if a claimant chooses to withdraw from individual evaluation, the last scheduled value offer will be reissued. Additional options such as recategorization or arbitration will not be available.
Deferring the Receipt of Initial Offers on Selected Claims
A number of law firms have asked whether they could defer receipt of a claimant's offer until there has been a settlement with other defendants. To place any claims on "law firm hold", send a written request to the Trust's Claims Processing Department listing the claimants' names, social security numbers, and proof of claim numbers. Any claims placed on "law firm hold" at a law firm's request will remain on hold indefinitely until the law firm sends the Trust a letter requesting that the claim become active again. Upon activation, the claim will receive its activation date as its FIFO date. When its FIFO turn is reached, the claim will be categorized and paid under policies in place at the time the claim is taken out of deferred status. Please note that it is the law firm's responsibility to contact the Trust in writing when they wish to activate claims on hold.
Guidelines for Documenting Claims
Whether you are preparing a proof of claim form for filing or responding to a request from the Trust for substantiation to support a previously filed claim, the following guidelines will help expedite processing.
Claim documents must be legible and complete to be acceptable. For instance, a poor copy of a medical report that can not be deciphered will not be accepted. The doctor's name and patient's name or social security number must be printed on medical reports. PFT reports must identify the facility and the patient. Likewise, if a document is requested during individual evaluation, such as a 1040 tax form, the entire form including the signature and tables is needed, not just the first page. Copies of W-2 forms must be legible.
Product information on the proof of claim must be specific. Leaving the section blank or writing in "all products" will result in rejection and return of a claim filing. Similarly, do not use obsolete product codes from claim forms that have since been replaced.
Occupation, industry and exposure information on the proof of claim form must be specific. In particular, if the claimant's occupation is not on the list of standard choices and is, thus, recorded as "OTHER", be as specific as possible in describing the claimant's occupation, and industry, and the nature of the claimant's exposure.
Computer-generated claim forms designed by law firms must be approved by the Trust's Manager of Claims Processing before they may be used to substitute for the Trust's official claim form.
Most significant exposure dates on the claim form (page 12) must be subsumed in the more exhaustive exposure section, "Employment Exposure History" (page 14).
There is some confusion about the new proof of claim section, Bystander Exposure History (page 16). If the injured person's most significant exposure was as a family member/bystander (Section 5A question 3) then the claim preparer should skip to the Bystander Exposure History. The Bystander section of the form (Section 5c) provides a place to document the primary exposure that led to the claimant's secondary exposure.
Responding to Requests for Information During Individual Evaluation
The Trust is finding that many law firms are not ready to begin negotiations on claims when they are assigned to negotiators. Law firm response times to requests for documentation by the Trust have been lengthy, exceeding 90 days.
To expedite the processing of claims in the Individual Evaluation queue, the Trust is implementing the following policies.
When a claim is assigned to a negotiator to begin the individual evaluation process, the claimant/attorney will receive a certified letter requesting submission of all documentation necessary for evaluation. The claimant has 90 days to respond to this request by providing the requested information or by certifying that the claim file is complete and ready for the Trust to evaluate. If the information is received within this 90-day period, the negotiator will begin the claim evaluation. If such a letter or all the requested documentation is not received by the Trust within 90 days, a second certified letter will be sent notifying the firm that if the requested information or written statement that the file is ready for evaluation, has not been received within 90 additional days the claim will be placed at the end of the individual evaluation queue. If an appropriate response is received within this second 90 day period, the Trust will attempt to begin negotiation on this claim within the subsequent 90 days.
Generic and Vague Language as Evidence of Asbestos Lung Disease
In an effort to update claims so that they meet the requirements of the TDP, many firms have submitted "generic" letters to confirm either, that a bilateral pleural or interstitial process exists or that the bilateral interstitial disease was caused by asbestos. The "generic" letters are termed as such because they do not make reference to a specific claimant but are intended to provide proof of the bilateral nature of the disease or asbestos causation for a multitude of claimants for whom a particular doctor had previously provided a radiology report. For example, one generic letter received states: "When pulmonary fibrosis is mentioned on a chest x-ray, if not otherwise mentioned, the disease is bilateral. If it is unilateral, this will be specifically mentioned."
Generic letters, whether submitted to confirm the bilateral nature of the disease or to provide a causal connection between bilateral interstitial fibrosis and asbestos exposure, are not acceptable for matrix purposes. In order to comply with the letter and spirit of the TDP, a radiology report or narrative report referencing a radiology report, for a specific claimant, must document a bilateral process. As to the causation report, there must be a reference to a specific claimant's x-ray findings, the claimant's exposure to asbestos, and the connection between the two.
Vague statements, (i.e., those which indicate that if a claimant was exposed to asbestos, then the findings could be related to asbestos) are likewise unacceptable even though they make reference to a specific claimant.
Manville Trust Staff Announcements
The Trust is pleased to announce the recent appointment of Phuong Do to the position of Treasurer. As Treasurer, Ms. Do will be responsible for managing the Trust's diversified portfolio of investments.
[1]Am. Rev. Respir. Dis. 119:831-838 (1979); updated, Am. Rev. Respir. Dis. 136:1286-1296 (1987); updated, Am. J. Respir. Care Med. 152:1107-1136 (1995). You can also find the standards on the Internet at http://www.thoracic.org/pft.html#1.