Breast Implants: Recovery & Discovery
LETTER AND PETITION FROM CLAIMANTS AND
INTERESTED PARTIES IN THE
DOW CORNING BREAST IMPLANT SETTLEMENT
REGARDING OPTION 1 DISEASE CLAIMS - LEVELS OF DISABILITY
August 2, 2006
The Honorable Denise Page Hood
United States District Court
Eastern District of Michigan
231 West Lafayette Boulevard
Detroit, MI 48226
Dear Judge Hood:
Please see exhibit 1 of the submission made by CAC attorney, Ms. Pendleton dated February 7, 2005, where an attorney representing claimants makes, basically, the same points we are making, when he states: “Most of all, I am shocked to see what is required to get paid $50,000 and that we have never been informed of this criteria.”
By the way, regarding the mention of death, it appears that some people (such as the claims administration reviewers) are being affected by the fact that the word death is at the beginning of the sentence of the criteria for Level A disability, Option 1. It is only there to be sure to indicate that a claim would be paid even if the claimant did, in fact, die from the named disease; nothing more. Mistakenly, it is putting the concept of dead, or nearly dead, at the forefront of the paragraph of criteria, where people are apparently believing this is what “totally disabled” means.
This standalone issue of a loss of vocation was what the issue was when Judge Pointer gave an opinion dated September 7, 1997 regarding an individual claimant. As the Claimants Advisory Committee has argued, there are some things that have gone wrong regarding what was presented to Judge Pointer, such as, who was made aware and had an opportunity to present and argue this important issue, since this was not raised as a major change to the Revised Settlement Program. In turn, this was not properly raised to claimants’ attorneys regarding affecting a significant change to the Dow Corning Settlement Agreement either. If it was, then why wasn’t the “Final Version” of the Dow Corning Settlement Agreement changed using the word “and”? (See attachment # 2, where the official website currently shows the final version of the Plan as dated May 26, 2004). Such a change was not even requested by Dow Corning’s attorneys, so they can’t try to claim that all parties knew of a change to the Plan.
Regarding loss of vocation being an indication of “total disability”, Social Security’s most fundamental criteria to qualify for disability benefits specifically indicate the following:
When Social Security Disability determines “total disability”, it is not limited to vocation, in that they, properly, include in their version of “and” a review that is of a broader scope of functional capacity than just self-care items. If the Dow Plan were written so that it included Social Security Disability’s list of functional capacities, then it could have used the word “and” in the disputed sentence. We believe the Dow Settlement Agreement was looking for the same type of determination as Social Security for “total disability” when it used the cumulative effect concept together with the use of the words “vocation or self-care”. This was the intent when the Plan was written, only Dow wishes they could change the Plan and suddenly get out of paying significant claims.
One of the ways we think this should be viewed is by the fact that there is text preceding the criteria for disability levels, which was taken, word for word, from the Global Settlement and the Revised Settlement Program, which describes their intent and the use of the word “cumulative”:
to which the individual is “disabled” by the condition, as the individual’s treating physician determines
in accordance with the following guidelines. The determination of disability under these guidelines will
be based on the cumulative effect of the symptoms on the individual’s ability to perform her voca-
tional, (4) avocational, (5) or usual self-care (6) activities. In evaluating the effect of the Breast Implant
Claimant’s symptoms, the treating physicians will take into account the level of pain and fatigue
resulting from the symptoms. The disability percentages appearing below are not intended to be
applied with numerical precision, but are, instead, intended to serve as a guideline for the physician in
the exercise of his or her professional judgment.
If they wanted to make it “and”, then someone would have had to choose more life activities than the extremely limited self-care items listed, such as is found in the Social Security Administration’s Functional Report, Form SSA-3373-BK. (See attachment # 4).
We believe the total loss of vocation for those who clearly lost full-time jobs is cumulative enough and stands alone regarding qualifying for Option 1, Level A Disability as provided in the Settlement
Regarding Level A -- Surely, if a person is totally disabled according to Social Security in that because total disability has been determined by functional capacities, severity of disease (there would only need to be verification that the disability is specific to the disease criteria in the Plan), and work history where a claimant can do “none or only few” vocational activities, they surely qualify at the Level A disability.
By the way: Social Security allows a few vocational activities as well, by examining work activity under their term, “substantial gainful activity” (“SGA). The rule regarding SGA is that work activity must be limited to earnings of no more than $830 per month for a period of no more than 6 months. If a person surpasses this (usually a work attempt), they are not totally disabled according to Social Security Disability. Those on disability are reviewed frequently and they are tied to the Internal Revenue Service to capture any data regarding any reported work activity at all. The bottom line is that this person is unable to work, or fits in Dow’s concepts of “few vocational …”, which is clearly defined as to what “few” would be.
Level C when it comes to someone having an active work history, the vocation-related thought should be for claimants who have qualifying medical conditions and yet they are working up to full time. But remember, she is likely suffering to do her other major life activities by the nature of her disease. She deserves to be compensated even though she works full time because she has the qualifying medical condition. Compensation for those who are working full time is already in effect, if anyone reviews samples of approved claims, so this is nothing new.
The federal rules used by Social Security Disability make excellent examples, sort of guidelines, for the Dow Corning Claims Administration to consider as the review claims. The Code of Federal Regulations (CFR) sections regarding Social Security Disability and the Social Security Rulings (SSR) could be useful regarding any disputes over individual claims. The SSR’s include, perhaps, useful case law with examples of people's circumstances, including those who are chronically ill with "multiple impairments", which is our scenario. (Please see attachment # 6, Social Security Program Rules).
In closing, our final point in addition to what we have conveyed here, would be to emphasize, in our own way, what we think about what has already been presented to you by the Claims Advisory Committee regarding the fact that the Settlement Agreement was agreed upon as written and voted on by the claimants.
This dispute is over a fundamental change to the Settlement Agreement, not simply a matter of “applicability” within Questions and Answers booklets regarding internal processing in parallel to the RSP. This change never really took effect in the RSP, as it was bungled and confused as a result of one claimant’s appeal, which lacked proper recognition and fair argument, especially for it to be considered an official change to be applied to all compensation for Option 1 disease categories within the Dow Settlement Agreement and compensation program.
This significant issue surely was not fully and fairly presented to Judge Pointer in September 1997 regarding one claimant’s appeal. Nor could it have been properly presented regarding such significance to making a dramatic change in a settlement agreement to Judge U.W. Clemon, Chief United States District Judge, United States Court for the Northern District of Alabama, Southern Division when on November 8, 2005 he made an order containing two sentences allowing a change in the RSP Questions and Answers booklet. (Also, this was long after most claims had been processed in the RSP). Were the appropriate interested parties present for these motions or appeals? What experts in disability were present? Did anyone make the arguments we would have liked to have raised regarding how extremely unreasonable and imbalanced such criteria for disability is?
We understand there has been some reliance on those who reviewed claims in the RSP regarding how claims were treated, or changed in treatment (actually for a short term), and yet this has been described as unclear. Perhaps it is that at some point certain employees (as the individuals who were employed surely changed over time) increasingly became quite zealous in their application of overly strict protocols where this was carried over to those also employed by the Dow Corning Claims Administration.
Please, Your Honor, take note of how far these employees have gone in being downright callous by referring to the extreme, yet real, examples provided by CAC in their Reply dated June 29, 2006, exhibits 24 and 25. It seems that some training is needed after this severe mistreatment might be addressed and, hopefully, stopped. But these extreme examples are not the only thing to fix, what needs fixing is what is before you now regarding allowing a change in the Plan that is extremely strict, unreasonable and unfair. The bottom line is that it was not the intent of the criteria, or it would have said so. The word intent was used and described in the text immediately preceding the disability criteria regarding the cumulative effect of vocation or self-care.
As we understand it, Dow Corning never made any motion to change the word “or” to “and” in the Option 1, Disability A. If it was a significant overall change made in the RSP, as Dow Corning’s attorneys allege that everyone knew about this change, then there is a paramount question to ask: Why didn’t they change the wording in the Settlement Agreement? Dow Corning raises Judge Pointer’s September 7, 1997 ruling regarding one claimant, which everyone didn’t know about, and now they are grabbing on to it as a complete and acceptable change that was broadly known and accepted by those involved with both the RSP and the Dow Settlement Agreement. If everyone knew of this modification all the way back in 1997, why did the Plan go out after that to Dow claimants without the change?
Basically, all the dates pointed out in the pleadings arguing over this, where the change supposedly occurred or was discussed, precede the date of what is established as the “Final Plan Documents”, dated May 26, 2004. (See attachment # 2, “Final Plan Documents” with dates shown). Neither this, nor the version of the Plan that was voted upon prior to this, contain any change in the wording. All Dow Settlement Agreement documents contained the identical wording regarding Option 1, Disability A criteria, using the words “or self-care.”
The Settlement Agreement, in Annex A, page A-13, section VI, 6.02, (d) loudly resonates that the medical conditions and disability levels are exactly the same as we claimants have seen in the Original Global Settlement and the RSP Fixed Amount Benefit Schedule, as presented to us –
DISEASE PAYMENT OPTION I COMPENSATION SCHEDULE
There may be some degree of a right to clarify the fulfillment of claims regarding the applicability of the RSP’s protocols and procedures, but there is surely no right to change the basis of what was originally, and time and time again, agreed upon and already carried out in 95% of all claims in the RSP. As many attorneys have already complained, this would cause a claims processing nightmare, not just of their own time; it is spending completely unnecessary time for the Dow Claims Administration staff to take up massive amounts of time re-reviewing claims already approved in the RSP.
To us, such a change being laid on us at this point, IS A NIGHTMARE.
Ø Your Honor, please deny any changes to this Settlement Agreement regarding the issue of self-care and clarify that the Settlement Agreement regarding Disability Level A for Option 1 diseases shall be applied exactly as the criteria states in all three settlement programs -- “vocation or self-care”, as defined regarding the cumulative effect of “vocational, avocational or usual self-care activities.”
Ø Please do not allow the word “and” to be replacing the word “or” in any new Questions and Answers booklet. This would be misquoting the criteria in the overriding Settlement Agreement. (Besides, if it is believed that the word would have to be changed, then it clearly is a change).
Ø It would be a simple matter to refer to the Social Security Rulings, and the Code of Federal Regulations in relation to disability evaluations of those claimants with qualifying medical criteria who were working before they became disabled.
Ø It is only reasonable to stipulate that those who have already established themselves on Social Security Disability (including SSDI) should be considered “totally disabled” as a Level A in Option 1, as long as their qualifying disease (as the Plan states) is attributed to be the cause of the disability.
Ø Those who have qualified as disability level A in the Fixed Benefit Schedule, and also the equivalent of Option 2 diseases, of the RSP, should be considered the same in the Dow Settlement Agreement.
In processing claims for Option 1, Level A Disability the procedures should align with claims that used the “or self-care” protocol, and that should be the end of it.
Signed and dated by the attached individuals.
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