Asbestos Disease: Are You Covered?

Introduction
Federal Employee's Compensation Act
Longshore and Harbor Workers' Compensation Act
State Workers' Compensation
Social Security Disability Claims
Veterans Administration
Private Disability Insurance
Civil Law Suit
How to Choose a Lawyer

INTRODUCTION

Workers, former workers or their survivors with asbestos-related diseases may be entitled to compensation benefits under one of many possible sources. Medical services may also be available from one or more of these sources to individuals needing care.

All potential sources of these benefits should be examined in order to determine eligibility and the extent of benefits available. Individuals or their survivors may have a right to assistance under one or more of the alternatives discussed below.

FEDERAL EMPLOYEES' COMPENSATION ACT

ELIGIBILITY

The Federal Employees' Compensation Act (FECA) is a workers' compensation law which provides benefits for injury. occupational disease, or death resulting from employment as a civilian by the United States government Present and former federal employees and/or their survivors may be eligible for FECA benefits if: 1) exposure to asbestos (usually airborne) occurred in the course of Federal employment and; 2) disability or disease requiring medical treatment resulted from that exposure.

NOTE: A person is not entitled to benefits if the employee did not acquire a disease casually related to asbestos exposure while working for the federal government.

TIME LIMITS FOR FILING A CLAIM

Under the law, a claim must be filed within a certain time period.

DISABILITY CLAIM: Where a disability claim is filed by a living employee or former employee, the time for filing a claim begins to run on the last date of on-the-job exposure to asbestos or the date the employee becomes aware, or by the exercise of reasonable diligence should have been aware, of the disease and its possible relationship to employment.

DEATH CLAIM: Where a death claim is filed by the survivor of any employee, based on death believed to be related to employment, time usually begins to run on the date of the employee's death. If the last date of on-the-job exposure to asbestos was prior to September 7, 1974, a claim must be filed within one year of the date time begins to run. However, the requirements may be waived for good cause shown if the claim is filed within five years of the date time begins to run. If the last date of exposure was on or after September 7,1974, a claim must be filed within three years of the date time begins to run.

The following exceptions may apply to extend the time limits for filing a disability or death claim: 1) Time limitations do not begin to run against a minor until he or she reaches 21 years of age or has had a legal representative appointed; 2) Time limitations do not run against an incompetent individual while he or she is incompetent and has no duly appointed legal representative; 3) Time limitations do not run against any individual whose failure to comply is excused by the Secretary of Labor on the ground that timely notice of injury or death could not be given because of exceptional circumstances.

HOW TO FILE A CLAIM

DISABILITY CLAIM: File Form CA-2, Notice of Occupational Disease, and Form CA-4, Claim for Compensation.

DEATH CLAIM: 1) File Form CA-5, Claim for Compensation by Widow, Widower. and/or Children; or 2) File Form CA-5b, Claim for Compensation by Parents, Brothers, Sisters, Grandparents or Grandchildren.

Where the federal agency, installation or activity at which the employee was last exposed to asbestos is still in operation. claim forms may be obtained from, and completed claim forms must be submitted to, the personnel office of that agency, installation or activity. The personnel office will forward completed claim forms to the proper Office of Workers' Compensation Program (OWCP) District Office for processing.

NOTE: See Appendix 1 for addresses of claims offices.

Where the federal agency, installation or activity at which the employee was last exposed to asbestos is no longer in operation, claim forms may be obtained from the personnel office of any federal agency, installation or activity, or from any OWCP District Office. Completed claim forms may be submitted to the personnel office at the national headquarters of the employing agency (e.g. Department of the Navy, Department of the Army), or to the OWCP District Office which has jurisdiction over the state in which the employee worked at the time of last exposure to asbestos in Federal civilian employment.

Forms may always be obtained from any OWCP District Office.

BENEFITS

MEDICAL CARE: An injured employee is entitled to first aid and medical care for an injury. This includes hospital care when needed. The medical care is to be provided by any duly qualified local private physician or hospital of the employee's choice. When travel is necessary to receive medical care, the injured employee may be furnished transportation and may be reimbursed for travel and incidental expenses.

DISABILITY COMPENSATION: Compensation is paid monthly during the period of total disability. Temporary disability is based on two-thirds of the pay rate unless there are one or more dependents where it is increased to three-quarters of the pay rate. An employee may decide to take sick leave or annual leave, or both, to avoid loss of income while the claim is being considered. If compensation is approved, then the employee can buy back the leave use, paying a portion his or herself.

SCHEDULED AWARD: Compensation is provided for the permanent degree of impairment of ventilatory function, as shown in a pulmonary function examination. The compensation will be based on the same percentages as used for temporary disability. A changing degree of loss may exist, so it may be desirable for the individual to be re-evaluated at appropriate intervals.

VOCATIONAL REHABILITATION: Vocational rehabilitation, job counseling, and placement assistance may be provided an injured employee who is unable to return to usual employment because of permanent disability due to the injury. Additional compensation not to exceed $200 per month may be paid if it is considered necessary for maintenance when the employee is pursuing an approved training course.

DEATH BENEFITS: 1) Death benefits are paid to a widow or widower or other eligible survivors if the injury causes death Reasonable funeral expenses, not to exceed $800, may be paid; 2) When there are no children entitled to compensation, the employee's widow or widower may receive compensation equal 40% of the employee's pay until death or remarriage. Upon remarriage, a widow or widower will be paid a lump sum equal to 24 times the monthly compensation being paid on his or her own behalf, except that if such remarriage occurs on or after the age of 60, the lump-sum payment will not be made and compensation will continue until the beneficiary's death; 3) Where there is a child entitled to compensation, the compensation for the widow or widower will equal 45% of the employee's pay plus 15% for each child, but no more than 75% of the employee's pay. A child is entitled to compensation until he or she dies, marries, or reaches 18 years of age, or, if over 18 and incapable of self-support, becomes capable of self-support.

NOTE: See Appendix 1 for addresses of claims office.

LONGSHORE AND HARBOR WORKERS' COMPENSATION ACT

ELIGIBILITY

The Longshore and Harbor Workers' Compensation Act (LHWCA) is a federally administered workers' compensation law which provides benefits for injury, including occupational disease, or death arising out of certain types of maritime employment. Prior to the amendments to the Act in 1972, only those employees working on the navigable waters of the United States, including any drydock, were covered by the Act. The Act applies to private employers and their employees.

The LHWCA has been extended to other groups of employers and employees:

1) the District of Columbia Workmen's Compensation Act, which covers private employment in the District of Columbia; 2) the Defense Base Act, which covers civilian employees or contractors with the United States who are employed outside the United States; 3) the Outer Continental Shelf Lands Act which covers employees working on the outer continental shelf in the exploration and development of natural resources; and 4) the Nonappropriated Fund Instrumentalities Act, which covers civilian employees of nonappropriated fund instrumentalities of the armed forces, such as post exchanges and clubs.

NOTE: Present and former employees of employers subject to any of the statues described above. and/or their survivors may be eligible for LHWCA benefits if their exposure to asbestos occurred in the course of employment and disability resulted from that exposure.

TIME LIMITS FOR FILING A CLAIM

Generally, the law requires that a claim be filed within one year from the date the employee or death beneficiary is aware, or by the exercise of reasonable diligence should have been aware, of the relation-ship between the employee's disease or death and his or her employment. In addition. the employee or beneficiary is required to notify the employer or former employer with whom the employee's last exposure to asbestos occurred, and the deputy commissioner in the compensation district in which the last exposure to asbestos occurred, within 30 days after the employee or beneficiary is aware of a relationship between the employee's disease or death and his or her employment.

Time limits for filing a claim do not begin to run against the claim of the injured employee or dependents entitled to compensation if: 1) the employer has knowledge of the injury or death; or 2) the employer has been given notice of injury or death; and 3) the employer fails, neglects or refuses to file a report of the injury or death with the Secretary of Labor as required by the LHWCA

NOTE: In this situation. time limits for filing a claim do not begin to run until the employer submits the required report.

HOW TO FILE A CLAIM

Claims for compensation for job-related diseases resulting from exposure to asbestos should be filed with the OWCP District

Office having jurisdiction over the state m which the exposure occurred. Disability claims are filed by the employee on Form LS-203. Claims for death benefits are filed on Form LS-262; this form should be used by widows, widowers or on behalf of children. Form LS-263 should be used for all other qualified beneficiaries. The appropriate form may be obtained from any OWCP District Office. Claims for compensation for occupational diseases alleged to be due to exposure to asbestos are subject to controversion by employers and/or their insurance carriers. Litigation, therefore, may extend to a formal hearing before an administrative law judge. who will conduct the hearing and render a decision on the claim.

BENEFITS

MEDICAL CARE: All medical, surgical, hospital treatment, supplies and services required by the occupational disease are paid.

DISABILITY COMPENSATION: Compensation is paid every two weeks during the period of total disability for work or for loss of earning capacity because of work-related injury. Permanent total disability and temporary total disability compensation is based on two-thirds of the employee's average weekly wage, subject to a maximum amount.

VOCATIONAL REHABILITATION: Employees who are too disabled to return to their previous jobs are referred to local rehabilitation facilities for counseling, testing and job replacement. Rehabilitation services may include the cost of tuition, books and supplies, and may provide a maintenance allowance during retraining.

DEATH BENEFITS: Death benefits are paid to a widow or widower or other eligible survivors if the injury causes death, or if the employee who has a permanent disability dies from causes other than the injury. Reasonable funeral expenses are paid, to a $3,000 maximum. The widow or widower of a covered employee receives 50% of the average weekly wages of the deceased employee for life or until remarriage. Additional compensation is payable: 16 2/3% for one or more children. If children are the sole survivors, 50% of the employee's average weekly wage is paid on behalf of the first child. Where more than one child is entitled to benefits, a maximum of 66 2/3% applies, shared equally.

Other eligible survivors include those who were dependent on the employee: parents, brothers, sisters, grandparents and grand children.

Compensation to an employee's survivors ends upon death or marriage. Upon remarriage, a widow or widower will receive two years of compensation in a lump sum. Awards to children, brothers, sisters and grandchildren end when they reach eighteen years of age but they may be extended if the child is a student or is incapable of self-support.

The total amount of compensation may not exceed two-thirds of the employee's wages.

NOTE: See Appendix II for addresses of claims offices.

STATE WORKERS' COMPENSATION

ELIGIBILITY

If an employee of a private company is exposed to asbestos while at that employment and a disability or disease results, he or she may be entitled to receive workers' compensation benefits.

TIME LIMITS FOR FILING A CLAIM

Under each State's Act, a claim must be filed within a certain period of time. The disease or illness should be reported to the employer as soon as possible if still employed and a form claim should be filed including the names of employers where exposure to asbestos existed. Prompt reporting is the key.

BENEFITS

MEDICAL BENEFITS: When notified of a work-caused illness, the employer has a duty to arrange for necessary medical treatment. In many states, the employee is entitled to select his or her own doctor. Continued care for respiratory infections is provided and should be utilized.

DISABILITY COMPENSATION: If the employee is disabled from work, he or she may receive a percentage of the average weekly wage, usually around two-thirds, subject to a maximum in most States. Usually, these payments end either when an employee can return to work or when he or she has reached a state of maximum recovery. If the employee returns to work at lower earnings, he or she may be entitled to compensation to minimize the loss.

PERMANENT LOSS OF USE: Compensation payments are to be made on the same percentage basis in some states as temporary disability and multiplied by a specific number of weeks for the degree of loss of ventilatory function, as shown in a pulmonary function examination. This lump sum payment is provided for by many States' legislatures and where applicable, it may be desirable for the individual to be re-evaluated at appropriate intervals.

REHABILITATION: The existence and extent of rehabilitation benefits varies by State. A qualified attorney should be consulted.

NOTE: See Appendix III for addresses of claims offices.

SOCIAL SECURITY DISABILITY CLAIMS

ELIGIBILITY

Eligibility for disability benefits under the Social Security system for disabled wage earners who have asbestos-related illness is determined by compliance with the following requirements.

EXTENT OF DISABILITY: The definition of disability is the inability to engage in any substantial gainful activity by reason of any medically determinable physical impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

APPLICATION FOR BENEFITS: An application for disability insurance benefits must be filed with the regional Social Security office.

INSURED STATUS: Depending upon age at the time of disability, the employee must have worked a requisite number of quarters with Social Security coverage.

WAITING PERIOD: A five-month waiting period must be completed unless there is en exemption by receipt of previous benefits.

AGE REQUIREMENT: The individual must not have attained the age of 65.

BENEFITS

A worker who is disabled due to asbestos-caused illness is entitled to a monthly cash disabled worker's benefit beginning in the month the eligibility conditions are met. The benefit rate is equal to the employee's primary insurance amount but the actual payment may be less if Workers' Compensation is received.

Benefits under this provision cease when one of the following situations occurs: 1) the second month after the month in which the disability ceases; or 2) the month before the month the worker attains age 65 (at which time the benefits are automatically converted into retirement benefits); or 3) the month before the month in which the worker dies.

Benefits are also available to a disabled widow or widower or a disabled son or daughter who meet a stricter disability test standard along with the other eligibility requirements. For more information on requirements and benefits for disabled workers under Social Security, applicants should call or visit their local Social Security office.

NOTE: The telephone number for your closest Social Security Office can be found in the white pages of your phone book under United States Government. HEW. Social Security Administration.

VETERANS ADMINISTRATION

NON-SERVICE CONNECTED DISABILITY

A veteran who has an asbestos-related illness is entitled to medical treatment from any Veterans Administration health facility. Additionally, benefits are available after age 65 as pension benefits. Both of these areas are not limited to asbestos illness.

SERVICE CONNECTED DISABILITY

Although it would be difficult to document, disability benefits may be available to veterans who can show through their military records that an asbestos-related illness was caused by or aggravated by the service connected exposure to asbestos. Due to the long latency period before signs of asbestos illness appear, a thorough search of old service records would be necessary to substantiate a service connected disability claim

NOTE: The telephone number for the closest Veterans Administration Office can be found in the white pages of your phone book under United States Government. Veterans Administration.

PRIVATE DISABILITY INSURANCE

An individual who has received a diagnosis of disability from an asbestos-related disease should review all policies of disability insurance he or she has privately and in conjunction with any mortgage or loan. These policies may provide benefits automatically and take over the payment of whatever loan they are connected with.

One area to analyze is the definition of disability as stated in the policy. It may be written as disability from an employee's regular job or any gainful employment. Additionally, the length of disability often determines which standard will apply. For instance, disability from a worker's regular job may be the standard for the first twelve months of disability and a stricter standard may determine disability after that.

Difficulties with benefits from private disability policies should be discussed with a qualified attorney.

CIVIL LAW SUIT

Throughout the United States, civil law suits are being pursued against the manufacturers of asbestos and asbestos products, the United States government and the employers who produce or process asbestos and asbestos products. The legal basis of these claims varies, depending on the individual situation and the law as established by the legislatures of each state.

In order to establish whether any basis for such law suits exists, an individual with an asbestos-related illness should be prepared to provide a detailed history covering: 1) source of asbestos exposure; 2) employment history; 3) health precautions in the work place where exposure took place; 4) medical history; 5) documentation of asbestos-related diagnosis; and 6) smoking history. The long latency period between the time of exposure and the diagnosis of an asbestos-related disease often makes it difficult to reconstruct the above items. Time limitations for filing civil suits vary from state to state and any individual who believes he or she may have an illness related to previous asbestos exposure should contact an attorney immediately. A qualified attorney should be consulted in order to further pursue possible civil law benefits and all of the information listed above should be compiled beforehand).

HOW TO CHOOSE A LAWYER

The Workers' Compensation laws as enacted by the state legislatures and the United States legislature are designed to be processed without need of any attorney. The compensation benefits provided can be applied for directly by the individual and in many cases benefits will be issued without any difficulty.

In many instances, however, the compensation benefits are contested by the agency involved and the assistance of an attorney is then necessary. An attorney should also be consulted in order to pursue possible civil law benefits.

As a general rule, an attorney should be contacted who is familiar with the specific area of benefits the individual qualifies for. The laws of each of the above areas are complex and constantly changing. Attorneys specialize in these areas in order to remain familiar with current law and to provide proper representation.

In some cases more than one attorney may be necessary to pursue the different forms of compensation available. Individuals who feel they need an attorney should be sure to inquire as to experience of the attorney in the area in which they are seeking benefits.

Attorneys' fees for disability compensation are regulated by State or Federal law. The fees must be paid by the individual but in almost all cases, fees are not paid until the benefits are granted or denied. Attorneys' fees for asbestos-related civil law suits are generally charged on a contingency fee basis. This means that the attorney receives a fee only if there is a successful recovery. The lawyer and the client agree on what percentage of the recovery the lawyer will receive as a fee.

Introduction
Federal Employee's Compensation Act
Longshore and Harbor Workers' Compensation Act
State Workers' Compensation
Social Security Disability Claims
Veterans Administration
Private Disability Insurance
Civil Law Suit
How to Choose a Lawyer