What is the definition of a physical examination?
A physical examination includes a basic inspection of the patient by a physician for physical signs and symptoms of a disease or abnormality. The practical application of this definition includes a meeting between a physician and patient in an examination area where the physician proceeds to inspect the patient with the standard of care appropriate for examinations related to suspected asbestos-related diseases. The examining physician should also indicate that he or she performed or reviewed reports of B-Reading, pulmonary function testing, or pathology tests on which his or her opinion of the patient's condition is based.
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What is "Significant Occupational Exposure"?
Claimant must have been employed for a cumulative period of at least five (5) years, in an industry and an occupation in which the claimant (i) handled raw asbestos fibers on a regular basis, (ii) fabricated asbestos-containing products so that the claimant in the fabrication process was exposed on a regular basis to raw asbestos fibers, (iii) altered, repaired or otherwise worked with an asbestos-containing product such that the claimant was exposed on a regular basis to asbestos fibers, or (iv) was employed in an industry and occupation such that the claimant worked on a regular basis in close proximity to workers engaged in the activities described in (i), (ii) and/or (iii) above. Disease levels V (Lung Cancer 1), Level III (Other Cancer), Level II (Severe Asbestosis) and Level I (Asbestosis/Pleural Disease) require "Significant Occupational Exposure." See Section 5.7(b)(2).
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What does "Credible Evidence of Exposure" mean?
Claimant must demonstrate meaningful and credible exposure to asbestos, asbestos-containing products or conduct for which the Asbestos Trust has legal responsibility (“Fairbanks Exposure”). That meaningful and credible exposure evidence may be established by an affidavit or sworn statement of the claimant (based on personal knowledge), an affidavit or sworn statement of a co-worker, or a family member in the case of a deceased claimant, by invoices, employment, construction or similar records, or by other credible evidence. See Section 5.7(b)(3) of the TDP.
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With regard to Product Identification, are there "presumptive" industries for the Fairbanks Trust?
No.
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Are there Qualifying Occupations for the Fairbanks Trust?
Yes. Because of the nature of the Debtor’s asbestos–containing products, the Asbestos Trust shall consider that there is a limited universe of occupations in which claimants are likely to have been directly exposed to asbestos, asbestos-products or conduct for which the Asbestos Trust has legal responsibility. Those occupations are laborer, steelworker, electrician, mechanic, insulator, millwright, pipefitter, steamfitter, plumber and welder. See Section 5.7(b)(3)(A) of the TDP.
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How long does a firm/claimant have to respond to a disallowance?
At this time the Trust has not instituted any response deadlines.
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Do Fairbanks Trust claims ever get permanently disallowed or dismissed?
The Trust has not yet established a time deadline for a claimant to cure deficiencies in their claim. The Trust may at a later date reconsider this position. Additionally, under Section 6.3 of the Trust Distribution Procedures, a claimant may elect to withdraw a claim at any time. A claim that is withdrawn or deemed withdrawn may be refiled at any time and shall be ordered in the FIFO queue based upon the receipt by the Trust of the refiled claim.
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Is there an ADR program for neutral evaluation of the value of a case or validity disputes?
Yes. See 5.10 of the Trust Distribution Procedures.
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How does a firm/claimant dispute a denied claim?
Questions or clarifications of claim deficiencies, valuations or other Trust actions may be addressed in writing to the Fairbanks Asbestos Trust. All unresolved disputes over a claimant’s medical condition, exposure history, and/or the validity or liquidated value of a claim shall be subject to mediation and/or binding or non-binding arbitration pursuant to Section 5.10 of the TDP, at the election of the claimant, under the Alternative Dispute Resolution Procedures to be adopted by the Trust. Fairbanks Trust Claims that are the subject of a dispute with the Trust that cannot be resolved by non-binding arbitration may enter the tort system as provided in Sections 5.10 and 7.6 of the TDP. However, if and when a claimant obtains a judgement in the tort system, the judgment shall be payable (subject to the Payment Percentage and Maximum Annual Payment) as provided in Section 7.7 of the TDP.
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How do I respond to a claim deficiency?
A claimant can respond to an intake/review deficiency by using the CPF e-File system. Law firms that are not registered users of the CPF’s e-File system and claimants not represented by counsel can submit responses via fax, e-mail or mail to the Trust care of the CPF.
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What are the criteria for each Disease Category?
See Section 5.7 of the Trust Distribution Procedures.
The medical and exposure criteria that a claim must meet to receive an offer for the Scheduled Value are as follows:
Level VI: Mesothelioma
- Diagnosis of mesothelioma; and
- Fairbanks Exposure as defined in Section 5.7(b)(3) of the TDP
Level V: Lung Cancer 1
- Diagnosis of a primary lung cancer plus evidence of an underlying Bilateral Asbestos-Related Nonmalignant Disease as defined in Footnote 5 of the TDP;
- Six months of Fairbanks Exposure;
- Significant Occupational Exposure as defined in Section 5.7(b)(2) of the TDP; and
- Supporting medical documentation establishing asbestos exposure as a contributing factor in causing the lung cancer.
Level IV: Lung Cancer 2
- Diagnosis of a primary lung cancer;
- Fairbanks Exposure; and
- Supporting medical documentation establishing asbestos exposure as a contributing factor in causing the lung cancer in question.
Lung Cancer 2 (Level IV) claims are those that do not meet the more stringent medical and/or exposure requirements of Lung Cancer 1 (Level V) claims. All claims in this Disease Level shall undergo IR. The estimated likely Average Value of the individual evaluation awards for this category of Fairbanks claims is $15,000, with such awards capped at $50,000 unless the claim qualifies for Extraordinary Claim treatment (as defined in Section 5.4(a) of the TDP).
Level III Other Cancer
- Diagnosis of a primary colorectal, laryngeal, esophageal, pharyngeal, or stomach cancer, plus evidence of an underlying Bilateral Asbestos-Related Nonmalignant Disease as defined in Footnote 5 of the TDP;
- Six months Fairbanks Exposure;
- Significant Occupational Exposure as defined in Section 5.7(b)(2) of the TDP; and
- Supporting medical documentation establishing asbestos exposure as a contributing factor in causing the other cancer.
Level II: Severe Asbestosis
- Either (a) diagnosis of asbestosis with an ILO of 2/1 or greater, or asbestosis determined by pathological evidence of asbestos, plus (x) TLC less than 65%, or (y) FVC less than 65% and FEV1/FVC ratio greater than 65%, (b) an “Asbestosis Death” as defined in the TDP Section 5.3(a)(3), or (c) asbestosis determined by pathological evidence of asbestos, plus (x) a qualified physician who prescribed oxygen and stated (y) the need for the oxygen is predominantly the asbestosis and (z) the oxygen is needed to perform daily life activities
- Six months Fairbanks Exposure;
- Significant Occupational Exposure as defined in Section 5.7(b)(2) of the TDP; and
- Supporting medical documentation establishing asbestos exposure as a contributing factor in causing the pulmonary disease in question.
Level I: Asbestosis/Pleural Disease
- Diagnosis of Bilateral Asbestos-Related Nonmalignant Disease, plus (a) TLC less than 80%, or (b) FVC less than 80% and FEV1/FVC ratio greater than or equal to 65%;
- Six months Fairbanks Exposure;
- Significant Occupational Exposure as defined in Section 5.7(b)(2) of the TDP; and
- Supporting medical documentation establishing asbestos exposure as a contributing factor in causing the pulmonary disease in question.
Medical Evidence Required to Establish an Asbestos-Related Disease: All diagnoses of a Disease Level shall be accompanied by either:
- A statement by the physician providing the diagnosis that at least ten years have elapsed between the date of first exposure to asbestos or asbestos-containing products and the diagnosis; or
- A history of the claimant’s exposure sufficient to establish a ten-year latency period.
For Disease Levels I-II – Except for asbestos claims filed against Fairbanks or another defendant in the tort system prior to the Petition Date, all diagnoses of a non-malignant asbestos-related disease shall be based, in the case of a claimant who was living at the time the claim was filed, upon a physical examination of the claimant by the physician providing the diagnosis of the asbestos-related disease. All living claimants, must also provide:
- For Disease Levels I, evidence of Bilateral Asbestos-Related Nonmalignant Disease as defined in the TDP Footnote 5;
- For Disease Level II, an ILO reading of 2/1 or greater or pathological evidence of asbestosis and pulmonary function testing (unless the claimant is able to meet the requirements in (1)(c) of the Medical/Exposure Criteria for Severe Asbestosis in TDP Section 5.3(a)(3)).
In the case of a claimant who was deceased at the time the claim was filed, the diagnosis of a nonmalignant asbestos-related disease (Levels I-II) shall be based upon either:
- A physical examination of the claimant by the physician providing the diagnosis of the asbestos-related disease; or
- Pathological evidence of the asbestos-related disease; or
- For Disease Level I, evidence of Bilateral Asbestos-Related Nonmalignant Disease and for Disease Level II, either an ILO reading of 2/1 or greater or pathological evidence of asbestosis; or meet the criteria of an “Asbestosis Death” as defined in the TDP;
- For Disease Levels II, pulmonary function testing is also required if the claimant does not meet the requirements for Severe Asbestosis or of an “Asbestosis Death” as defined in the TDP.
For Disease Levels III-VI – All diagnoses of asbestos-related malignancy shall be based upon either (a) a physical examination of the claimant by the physician providing the diagnosis of the asbestos-related disease, (b) a diagnosis of such disease by a board-certified pathologist, or (c) a pathology report prepared at or on behalf of a hospital accredited by the Joint Commission on Accreditation of Healthcare Organizations.
For a detailed description of the medical evidence requirements by Disease Level see TDP Section 5.7 (a). You should review this section of the TDP before filing a claim.
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Does the Fairbanks Trust cap the percentage of attorney fees payable in connection with the filing and settlement of Fairbanks claims?
No.
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