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I first saw the asbestos issue back in 1984, more than 20 years ago, when then-Senator Gary Hart of colorado brought in Johns-Manville. And this very tough issue has been very elusive for more than two decades, and it has mounted in problems, reaching a situation where we now have some 74 companies which have gone into bankruptcy, thousands of individuals who have been exposed to asbestos, with deadly diseases--mesothelioma and cancer--and who are not being compensated. And about two-thirds of the claims, oddly enough, are being filed by people who are unimpaired. The number of asbestos defendants has risen sharply from about 300 in the 1980s to more than 8,400 today, and most are users of the product. It spans some 85 percent of the U.S. economy. Some 60,000 workers have lost their jobs. Employees' retirement funds are said to have shrunken by some 25 percent. And beyond any question, the issue is one of catastrophic proportions.--Chairman Arlen Specter, at a January 11, 2005, Senate Judiciary Committee Hearing.
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Non-malignant Conditions --For non-malignant conditions (Levels I to V), the medical criteria generally require a diagnosis of bilateral pleural plaques or thickening, bilateral pleural calcification, diffuse pleural thickening, bilateral pleural disease of grade B2, or asbestosis based on x-ray readings or pathology. Level II includes claimants with mixed obstructive and restrictive disease based on pulmonary function testing and supporting medical documentation, such as a written opinion by the examining or diagnosing physician according to diagnostic guidelines establishing that asbestos exposure was a contributing factor to the disease. Mild, moderate and severe impairment is required for Levels III, IV, and V, respectively, based on pulmonary function test results and supporting medical documentation, such as a written opinion by the examining or diagnosing physician according to diagnostic guidelines establishing that the claimant's asbestos exposure is a substantial contributing factor in causing the pulmonary condition in question. Level I requires five years cumulative occupational exposure, while levels II through V require five years substantial occupational exposure weighted based on time and industry (“weighted years”).
Malignant Conditions --For malignant conditions (Levels VI to IX), the medical criteria require a diagnosis of mesothelioma, primary lung cancer, or other cancer.
Level VI (other cancers) claims include (i) a diagnosis of primary colorectal, laryngeal, esophageal, pharyngeal, or stomach cancer; (ii) evidence of a bilateral asbestos-related nonmalignant disease; (iii) fifteen weighted years of exposure to asbestos; and (iv) supporting medical documentation, such as a written opinion by the examining or diagnosing physician according to diagnostic guidelines establishing that the claimant's exposure to asbestos was a substantial contributing factor in causing the claimant's other cancer. Level VII claims must include: (i) a diagnosis of primary lung cancer; (ii) evidence of bilateral pleural plaques, thickening, or calcification as established by chest x-ray or any such diagnostic methodology supported by the findings of the Institute of Medicine; (iii) evidence of twelve or more weighted years of substantial occupational exposure; and (iv) medical documentation, such as a written opinion by the examining or diagnosing physician according to diagnostic guidelines, establishing asbestos exposure as a substantial contributing factor in causing the cancer. Level VIII claims must include: (i) a diagnosis of a primary lung cancer disease; (ii) evidence of asbestosis based on a chest x-ray showing irregular opacities and the relevant weighted years of exposure; and (iii) supporting medical documentation, such as a written opinion by the examining or diagnosing physician according to diagnostic guidelines establishing that the claimants exposure to asbestos for ten or more weighted years was a substantial contributing factor in causing the claimant's cancer. Level IX claims shall include: (i) a diagnosis of malignant mesothelioma; and (ii) credible evidence resulting from occupational, take home, or other identifiable exposure to asbestos. Diagnosis of all of the malignant disease levels must be made by a board certified pathologist.
Exceptional Medical Claims: This allows a claimant to have a claim designated an exceptional medical claim if the claim does not meet the medical criteria requirements of the bill or has been found ineligible for compensation based on the failure to meet the medical criteria only. The claimant must provide a report from a physician meeting the requirements of this section which includes (i) a complete review of the claimant's medical history and current condition, (ii) additional material as required by the Administrator, and (iii) a detailed explanation as to why the claim meets the standard for designating exceptional medical claims.
A Physicians Panel shall review all applications for designation as an exceptional medical claim. For the claim to receive treatment as an exceptional medical claim, a Physicians Panel must find that the claimant cannot meet the requirements for reasons beyond the individual's control, but can through comparably reliable evidence establish a condition similar to one that would satisfy the requirements. In reaching its determination, a Physicians Panel may request additional reasonable testing. Further, the claimant may submit CT scans in addition to an x-ray.
If a Physicians Panel certifies a claim as an exceptional medical claim, it must designate the disease category for which the claimant may seek compensation and refer the claim to the Administrator for a determination on eligibility on the remaining diagnostic, latency and exposure requirements. In making this determination, the Administrator shall give due consideration to the recommendation of the Physicians Panel. If a Physicians Panel denies claimant's application for designation as an exceptional medical claim, then the claimant may resubmit application based on new evidence, specifying the new evidence that serves as the basis of the resubmission.
Naturally Occurring Asbestos --Claimants exposed to naturally occurring asbestos may file and seek designation as an exceptional medical claim.--Claimants exposed to naturally occurring asbestos may file and seek designation as an exceptional medical claim.
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