Mesothelioma Compensation Claims

Summary

More than 100 companies in the US have filed for bankruptcy protection since the 1980’s, mainly due to the huge number of asbestos-related liability claims filed against them. Bankruptcy courts set up personal injury (PI) asbestos trust funds to redistribute some of the companies’ profits as compensation for personal injury and wrongful death victims and their families. You may qualify for compensation based on your illness.

Regardless of whether exposure to asbestos in your situation happened at work, in school, or even in your home environment, you may be entitled to compensation from one or more asbestos trust funds.

Disease Levels for Asbestos-Related Injuries

When reviewing serious illness claims, every trust fund has its own unique set of criteria and protocols for deciding if a claimant can access the fund.

Trust Distribution Procedures (TDP) are used by each trust fund to determine if a claimant can prove exposure to asbestos. There are eight different “disease levels” that each trust recognizes as being related to asbestos exposure.

A claimant who has experienced one or more of these illnesses must show proof of a link between the exposure and their disease.

  • Level 8 – Mesothelioma
  • Level 7Lung Cancer 1
  • Level 6 – Lung Cancer 2
  • Level 5 – Other Cancer
  • Level 4 – Severe Asbestosis
  • Level 3 – Asbestos/Pleural Disease 2
  • Level 2 – Asbestos/Pleural Disease 1
  • Level 1Other Asbestos Disease (Level 1)

For a claim to succeed, the asbestos exposure that caused death or serious asbestos-related disease to the victim must be related to an asbestos product or material that was manufactured, used or supplied by the bankrupt company whose interests the trust fund now represents. The trust will decide a compensation payment amount appropriate to your qualifying level of illness.

Criteria for Proof of Exposure

You must provide certain background information to the trust before they can decide the claim is valid. This information would include employment records, affidavits and depositions from co-workers and/or family members and details about what type of industry or activities you were engaged in when the claimant came into contact with asbestos.

You must also provide medical information regarding your illness.

This would include things like:

  • The date of diagnosis
  • The disease level
  • Medical records
  • X-rays
  • Doctor statements regarding latency period
  • Death certificate if the victim had died from injuries

Choosing the Right Type of Asbestos Claim

There are two types of claim process that a claimant may make—Expedited Review or Individual Review. Each process has its own criteria that must be met.

Expedited Review

An expedited review process is the most commonly used claim method and involves the following:

  • Allows for a quicker payout to an injured claimant
  • Based on a fixed table of values that correspond to the disease on which the claim is based
  • The claimant will be able to know the payment amount in advance
  • The more serious the illness, the higher the claim payment will be
  • Reduced burden of proof due to a shortened life expectancy and clear scientific evidence linking asbestos exposure to mesothelioma/asbestosis
  • This claim process cannot be used for all forms of asbestos-related disease

Individual Review

An individual review process is less common, but all claimants should know the following about this method:

  • Often chosen where a claimant hopes to get a higher payment based on their individual work history and medical situation
  • There is no guarantee that the payout will be higher using this process
  • This process takes longer than the expedited review process
  • Approximately 3% of total claims filed go through individual review
  • Requires a lot more detail about the claimant’s employment and medical history

In some cases, an individual review claim process must be selected.

For example, if you developed lung cancer, and you are also a smoker, or if you do not meet the trust fund’s other exposure criteria or medical circumstances, then you must choose the individual review process when making a claim.

Getting Asbestos Claim Payments

In the case of an expedited review claim, once a claim has been filed, it will be reviewed on a first in, first out (FIFO) basis for correctness and completeness.

MJN Brief

It’s vital to work with a mesothelioma lawyer who can competently and properly help you with your claim. Otherwise, you risk losing compensation. Claims that are incomplete or that lack the proper paperwork or evidence will be returned as deficient, causing delay. Once the claim is sufficiently correct, the trust will assess the dollar amount of the claim, or the amount to be “liquidated” and will send the claimant an offer and release.

If you’ve been sent an offer, but you refuse it, then an alternative dispute resolution (ADR) or arbitration process may be made available. If you’re still unwilling to accept the offer that results from ADR/Arbitration, then you have the option of filing a lawsuit against the trust.

If you accept the offer, then your payment will be made according to the Trust Distribution Procedures (TDP). This procedure involves assigning a set dollar value to each level of disease and then applying a payment percentage of that set dollar value to calculate how much you’ll receive as payment. The percentage varies because it is affected by how much money the trust has available for current and future claims. Remember—there are still potentially thousands more patients who will also need compensation from these trusts.

An asbestos claimant might be offered $19,000 if the value for the disease is set at $100,000, and the payment percentage is 19% at the time the payment is offered. Trustees regularly review payment schedules based on the performance of the trust’s assets. If the assets have seen improvements and the payment percentage has been increased after the payment has been accepted, you would receive an additional payment.

In the individual review claim process, once a claim has been filed, it will be in a separate queue and reviewed on a first in, first out (FIFO) basis.

If your claim is correct and complete, the amount to be liquidated (the value of payment) is determined using award amounts from civil litigation claims in the courts. They’ll consider factors such as age, degree of disability, number of dependents and settlement data from your law firm.

Fair Compensation for Current Victims and Future Claimants

From the time of exposure, there is often a decades-long latency period before asbestos-related diseases result in a medical diagnosis or death.

The delayed onset of symptoms makes it hard for the group of trustees who manage the trust fund to estimate how many people have been affected by asbestos exposure, which complicates the budgeting of the fund for future payouts. But whether the victim died from their injuries, is currently dealing with their illness or is yet to be diagnosed, the compensation rights of all victims are valid.

Trust funds have to balance the interests of two competing groups:

  • Current Claimants—asbestos victims who have already filed a compensation claim with the trusts based on diseases or symptoms that have already manifested.
  • Future Claimants—asbestos victims who may or may not yet have experienced disease symptoms, but have not yet filed a claim with the trust.

As there are no guarantees that a trust will be able to remain solvent for an indefinite period, the tragic reality is that not all future claimants can be sure to receive fair and adequate compensation for their injuries. Working with a mesothelioma attorney that deals with these types of concerns on a daily basis will help put your mind at ease about obtaining a timely compensation payout.

View Author and Sources
Sources
  1. Asbestos Bankruptcy Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest Trusts. Santa Monica, CA: RAND Corporation, 2010. Retrieved from https://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR872.pdf Accessed on November 12th, 2017.
  2. Agency for Toxic Substances and Disease Registry. Asbestos Toxicity
    Who Is at Risk of Exposure to Asbestos? Retrieved from https://www.atsdr.cdc.gov/csem/csem.asp?csem=29&po=7 Accessed on November 14th, 2017.
  3. United States Government Accountability Office. Report to the Chairman, 2011, September. Asbestos Injury Compensation: The Role and Administration of Asbestos Trusts. Retrieved from: http://www.gao.gov/assets/590/585380.pdf Accessed on November 20th, 2017.
  4. Mazurek JM, Syamlal G, Wood JM, Hendricks SA, Weston A. Malignant Mesothelioma Mortality — United States, 1999–2015. MMWR Morb Mortal Wkly Rep 2017;66:214–218. DOI Retrieved from https://www.cdc.gov/mmwr/volumes/66/wr/mm6608a3.htm#suggestedcitation Accessed on December, 5th, 2017.

Last modified: February 19, 2018