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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

Southern Division

231 West Lafayette Boulevard

Detroit, MI  48226

 

Dear Judge Hood:


We are claimants in the Dow Corning silicone breast implant matter, and are writing because we are horrified to see the “spin” on disability Level A for Option 1 diseases to have sunk to such a low level … literally!

This letter is written based on the arguments held at the end of June 2006.  We strongly stand behind what our Claimants Advisory Committee has presented to you, Your Honor, especially their last submission dated June 29, 2006.

Our purpose in writing is to emphasize how changing the agreed upon settlement plan can be so extremely unfair to claimants, and implore you not to allow such a change. Getting right to the nitty-gritty, if the disability evaluation for Level A, Option 1 diseases where the sentence in question would be changed to read, “An individual will be considered totally disabled if she demonstrates a functional capacity adequate to consistently perform none or only few of her usual activities of vocation, avocation, and self-care”, then this would mean ---
If a claimant can still manage to do these five things – Dress, feed, bathe, groom and toilet herself she does not deserve compensation of $50,000 even if she has had her life destroyed and can no longer do almost all of the other major life activities.


By major life activities, we are referring to all of the activities defined by the federal government and most all agencies that evaluate disability.  (Please see attachment # 1).

A person who cannot do any one of these five self-care items, likely cannot do any of the other ones.  If anyone thinks of this, they would realize, that a person who cannot get a toothbrush in her mouth, likely cannot feed herself either, or comb her hair, or dress herself, or take a bath, or go to the toilet on her own.  Making it a requirement to have one, two, or more of these items, with no regard for other proof of disability (which is what the word “and” does to the sentence) is as ridiculous as saying someone is a little pregnant!  In all these recent arguments, it doesn’t seem that anyone is thinking enough of the fact that this change of wording will disqualify nearly everyone with these chronic diseases. The only ones who would qualify at all, would not be just fully disabled, they would have to be bedridden invalids!

To change the word in the sentence to “and” instead of “or” self-care, as to the limited definition for self-care (vs. the true more broad list of functions having to do with one being able to take care of oneself, such as meal preparation, shopping for groceries, cleaning where you live, etc.) makes it ridiculous by any similar standards for assessing compensation for disabilities.  Almost no Option 2 claimants would qualify either, if they had to.  (Option 2 Levels for compensation are strictly based on severity of their diseases, which are very severe health conditions, however, there are no questions asked regarding disability.  No one has attempted, or is attempting to change this, and rightly so).

How unfair it is to allow such a change at this stage, which is so illogical and unreasonable.  After all, if a person cannot do those things, then she is surely as severely ill, or even more progressed in severity, than the significantly higher paid diseases in Option 2.  If a person who could qualify as being a bedridden invalid, undoubtedly, she should be receiving at least $250,000, or more, because she is surely equally as ill as anyone qualifying in Option 2.  (We are not submitting for any changes to the Settlement Plan regarding compensation because the Plan has already been voted upon and all agreements have been made).  

 

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.

If the court were to allow such a change to the settlement by allowing the sentence in question to be changed to “and” instead of “or” self-care (as defined) why bother listing any other requirements besides those particular 5 self-care items?  So, if the word “and” replaced “or”, there would be no need for the word “few” either.  It might as well say strictly “none” because anyone so ill regarding self-care (imagine being spoon fed) cannot do a “few” vocational things at all.

If the court were to allow this atrocity, what Your Honor would be saying is, “It doesn’t matter if you claimants lost your livelihoods (whether vocation, avocation or homemaker), YOU ARE NOT INJURED UNLESS YOU ARE INCAPACITATED INVALIDS BEING SPOONFED AND IN DIAPERS -- You get next to nothing (at only $10,000, or maybe $20,000) for what you have lost and for the rest of your life.”  “No, you claimants can’t even have $50,000 for the loss of 95%, or more, of all that makes a life a life when it comes to the long list of major life activities”.

As this has been presented to you, Your Honor, is no one is thinking of a disabled a person’s loss of a LIFETIME of WAGES?  From a cumulative standpoint regarding vocational, avocational, or self-care, surely vocation is enough to accumulate toward receiving a total of $50,000 for disability, Level A when anyone considers the gargantuan amount of wages many of us have lost. (Example of wages: Just think of $25,000/year times ten, twenty, or 30 years.  What about those of us who earned twice that?)

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.

The criteria in the Plan uses the words “totally disabled” within the paragraph describing Option 1, Level A disability.  By all standards, outside of this Plan, for evaluating disability regarding loss of the ability to work or loss of livelihood regarding major life activities, “totally disabled” does not require that a person be so severely incapacitated where she would surely be a bedridden invalid.  (Of course, there exists some descriptions of such limitations using the term “self-care”, but this is common when it comes to national census statistics, or a review of nursing homes, or when it comes to the rights of the disabled in public places, etc., but not when it comes to being compensated for disability.)

As a paramount example, the federal Social Security Administration’s standard requires that a person be “totally disabled”, specifically using that term.  (Please see attachment # 3).  Social Security Disability reviews, not only a person’s inability to work by a form called “Work History”, but the second form an applicant must fill out is called, “Functional Report”.  (Please see attachment #4, Function Report, Form SSA-3373-BK).  The individual is evaluated regarding a reasonable list of functional capacities, or major life activities, to determine that a person is “totally disabled.”  Their vocation and functional capacities are not limited to being unable to do solely self-care (which they refer to as a part of their list of functional capacities including bathing, toileting, grooming, dressing and feeding as “personal care” items).  

 

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:

       “Social Security pays only for total disability”
      “This is a strict definition of disability.”
       “Are you working?  “Is your condition “severe?”

Social Security’s Function Report is not limited to self-care, which they call “personal care”.  It inquires into the ability for one to take care of themselves as well as limitations in normal overall daily activities, such as:  taking care of others in the home (including pets), sleep, meal preparation, household chores, getting around (going outside, driving, etc.), shopping, money management, hobbies and interests, social activities, etc.  Then the form also questions physical limitations to lift, walk, squat, stand, etc., which is also included in the “Work History” form.  (By the way: Social Security Disability is responsive to reviewing applicants for benefits who have multiple impairments and chronic illnesses, as we claimants do, where they understand that sustaining the physical abilities is key, not just whether a person can ever lift things from work-related items to household items).

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”:
 
          The compensation level for [ACTD / and other Option 1 diseases, as noted] will be based on the degree

           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.

                4 Vocational means activities associated with work, school, and homemaking.
                5 Avocational means activities associated with recreation and leisure.
                6 Usual self-care means activities associated with dressing, feeding, bathing, grooming, and toileting.


Considering the cumulative effect of the symptoms, if the Dow Settlement Agreement said “and”, it would require cumulative from each category, but it doesn’t say “and”, it says “or”.  Being cumulative from either category was the intent when the agreement was made and presented to all of the claimants.  In all this time, Dow Corning has not tried to change it either.  It would be completely unreasonable and it would be grossly disproportionate regarding the levels of compensation among all categories of diseases in both Option 1 and Option 2.  It is illogical for the reasons we are trying to describe in this letter.

 

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).

Disability is defined as a loss of vocation or avocation in relation to employment.  (See attachment # 5).  We know the Dow settlement needs to be sure to compensate those who have been injured who were not working at the time the became disabled, and strongly stand behind assessments of a broad spectrum of functional capacities involving all major life activities, and should not be limited to some personal hygiene tasks, referred to as “self-care”.   This is why the word “or” is so important because it does keep under the category of vocation the job of homemaking, but it is just as unfair to those who were not working to have the requirement changed to require homemakers to have to meet the limited requirement of “and self-care” as well.

 

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


Agreement because those individuals are limited regarding the rest of their life activities as well when they are assessed by Social Security.  We believe it is cumulative enough, for the reasons described here.  Of course, we are not saying that work history alone is the only criteria for those having qualifying diseases, but with loss of vocation in mind, a person has surely lost a significant amount of major life activities as well, where they are “totally disabled” as Social Security assesses those who lost their jobs and wages.

Because Social Security Disability strictly makes determinations of “total disability”, it certainly would save a lot of time and money, if those claimants who have met the medical criteria of Option 1 diseases were reviewed in relation to their documentation having proved their “total disability” to Social Security and would be accepted as such. This would help all categories of claimants by saving massive hours of reviewing disability levels, not only for Level A, Option 1, but would save time, which could be given toward getting on with all other claims in Option 1 and in Option 2 as well.

By more readily accepting Social Security determinations for Level A disability, this would speed the disability aspect (only) of claims, which parallels the point being raised by many attorneys regarding those who have already been approved in the Revised Settlement Program who are also eligible for compensation in the Dow Plan.  (Of course, regarding those on SSD or SSDI who have not partaken in the MDL 926 Revised Settlement Program (RSP), would still have to qualify in the Dow Settlement regarding diseases, and that review process would remain).

All along
, many of us have thought there is a simple way to view each of the levels A, B and C of disability for those who have qualifying Option 1 diseases if claimants had been employed before they became disabled, or if they are even currently employed:

 

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 B disability, when it comes to someone having had an active work history, one perspective of an example scenario should be:  If a person works, a part time job up to 24 hours per week (which totals about 3 days of work per week), they are doing about 65% of a work week.  From a cumulative standpoint, the person would also likely (and can be verified by the existing general process) be doing about 65% of their usual major life activities, which should qualify that person as being 35% disabled in the Dow settlement.  There is no Social Security Disability in this category, but the concept of working part time makes sense. We assure you, persons with qualifying medical conditions are surely struggling with their chronic illness and physical limitations while the effort to work part time.  For the sake of those who are working part time while having a qualifying medical condition, they are struggling to maintain working part time at all, and the other major life activities go by the wayside.


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

 

Original Global Settlement Criteria

(Fixed Amount Benefit Schedule of

the Revised Settlement Program)

Disability/Severity Level

or Covered Conditions

 

Dow Corning Breast Implant and

no Bristol, Baxter or 3M silicone gel breast implant

 

 

 

Base Payment

 

+ Premium Payment

= Total Payment

A

$50,000

+ $10,000

= $60,000

B

$20,000

+   $4,000

= $24,000

C or D

$10,000

+   $2,000

= $12,000

 

 

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.

 

(If you would like to sign this letter, please go to [LINK to pg 4 http://www.humanticsfoundation.com/judgehood4.htm] )

 

 

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