The areas that will be covered in this newest update are as follows:
 

(A)		Why has only 279 Disease Option 2 claims been approved, while 10,511  Disease Option 1 claims have been approved?
(B)		What a claimant can do if their Disease Option 1 Level A claim was denied, but accepted at Level B?
(C)		What happens if your claim in the MDL-926 Class Action was reduced by 50% because you had a Dow Corning implant and the SFDCT has rejected your Proof of Manufacturer claim for your Dow Corning implant?
(D)		Rupture claims that are still being denied, when supporting documents  describe the implants as “leaking”
(E)		Waiting time for Claims Processing and Payments
(F)		Notice of Intent (NOI) claimants still not entitled to Rupture or Explant Benefits

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(A)

WHY HAS ONLY 279 DISEASE OPTION 2 CLAIMS BEEN  APPROVED, WHEN 10,511 DISEASE OPTION 1 CLAIMS HAVE BEEN APPROVED

One would think the most obvious answer would be because the disease criteria is much stricter than the disease criteria for Option 1 claims, and the majority of claimants do not have or fulfill the criteria for Lupus, Scleroderma, General Connective Tissue Symptoms (GCTS), Polymyositis (PM) or Dermatomyositis (DM).

From the feedback I have received from many other claimants, including my own clients, it is their opinion that many times the SFDCT has actually gone out of their way to reject an Option 2 disease claim. This sentiment was also echoed by several attorneys during an Attorney’s meeting with the Claims Administrator in Dallas. Several examples of this “perceived notion” that the SFDCT has gone out of their way to reject an Option 2 disease claim include the following:

1. In order to be credited with the symptom of “Polyarthritis” under the disease GCTS, a QMD has to document on two examinations, six weeks apart, that the patient had “tenderness and swelling” in three or more joints in two different joint groups. The SFDCT has rejected this symptom where the QMD stated in the report that the patient had “PAIN” and “swelling” in three or more joints in two different joint groups. It appears that the SFDCT rejected the report because the QMD did not use the word “tender”, and used the word “pain” instead. Does this make sense? One would think if a claimants joints are painful to the touch, how could the joint not be tender? Imagine if someone had painful and swollen joints and you squeezed their hand real hard until they screamed in pain. If you asked them was that painful, I am sure their answer would be “yes”. If you also asked them if their joints were also tender, I can almost guarantee you that the answer would also be “yes”.  So why is the SFDCT rejecting the symptom, when common sense would dictate that a painful joint is also a tender joint?
2. In order to be credited with the symptom of “Sicca” (Dry Eyes) under the disease GCTS, a QMD has to administer a Schirmer’s test, which measures the dryness of one’s eyes. If the test results are positive (less than 8mm in either eye), the test was given in a 5 minute interval, the doctor then has to state the patient’s dry eyes were not preexisting before their first breast implant, they do not take medication known to cause dry eyes and their dry eyes is not caused by contact wear.  The SFDCT has denied this symptom where the doctor had administered a Schirmer’s test which was positive, and also included all of the above mentioned exclusionary statements. Why was it denied? Because the doctor did not state in his report that the patient complained of dry eyes!  Even though the client went to the doctor to have her eyes tested for dryness, even though the test results were positive, even though the doctor had provided all the exclusionary statement, the symptom was denied because the doctor did not put in his report that the patient complained of dry eyes. Does this make sense?

Another reason that have been given for the 88% Rejection Rate of Disease Option Two Claims, has to do with the way the criteria has been written for the diseases covered under Option Two and the way the SFDCT interprets the criteria. For example, a claimant can be diagnosed with lupus by their Rheumatologist and take the medication that has been prescribed to them for their lupus symptoms. In the event that the medication is now working, many of the claimant’s lupus symptoms have been put into remission. Many claimants who has been diagnosed with lupus by their Rheumatologists, and are following their doctor’s orders by taking their medication, and now do not have 4 of the 11 criteria for lupus under Disease Option 2, their claim will be denied. Does that mean they do not have lupus? Does that mean their claim for lupus should be denied by the SFDCT because they are following their doctor’s instructions? Is this fair?

In all actuality, this 88% Rejection Rate of Disease Option Two Claims is higher, because the 12% Acceptance Rate includes those claims that were previously approved by the MDL-926 Claims Office and were considered “Pass Throughs”.  “Pass Throughs” claims are when a claimant received an implant from Bristol, Baxter or 3M and also received a breast implant from Dow Corning and had their claim settled at 50% in the MDL-926 Class Action. The SFDCT then would “automatically” pay the remaining 50%, without reviewing the disease claim again.

To get a true and accurate figure of what is the Acceptance Rate for Disease Option 1 and Disease Option 2 claims, the SFDCT should release information as to how many MDL-926 Pass Through claims have been approved.

To make the disease criteria even stricter, a claimant is required to document that their eligible symptoms all occurred within a 24 month period or they will not be credited. The CAC is taking the position that this time period was tolled during the pendency of the Dow Corning bankruptcy. The issue was briefed and argued to the Court by the CAC in September of 2004. To date, the Court has not made a ruling.

In all fairness to the SFDCT, I am sure it is their position that they are only following the set claims/disease criteria that have been provided to them by the formulators of the Dow Plan, and do not have the authority to interpret the claims/disease criteria otherwise. However, when certain aspect of the claims/disease criteria defies common logic, and is unfair to the claimants, then changes need to be made by the Claims Administrator or a motion should be filed with the Court addressing this issue.

Any claimants and/or attorneys who have had similar experiences with the SFDCT, I would like to hear about your experiences.

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(B)

WHAT A CLAIMANT CAN DO IF THEIR DISEASE OPTION 1 LEVEL A CLAIM WAS DENIED, BUT ACCEPTED AT LEVEL B?

As stated in one of my earlier updates, pursuant to a conversation I had with the Claims Administrator, if a claimant applied for a Level A disability claim and it was denied because of the pending “and/or” (which usually has to do with “self care”) issue, but the claim was approved at either Level B or C, a claimant can accept the payment at the Level B or C settlement amount now, and if the Court rules in the favor of the CAC, the SFDCT will go back and re-review the claim to determine if the claimant qualifies for Level A. If under the new definition of Level A the claimant now qualifies for Level A, the SFDCT will pay the claimant the difference in the two amounts.

Claimants should review their Notification of Status letters as to the exact reason why their Level A claim was denied, before accepting the Level B settlement. If the reason for the denial was not due to the “and/or” issue of “VOCATION AND SELF CARE or VOCATION OR SELF CARE, then your acceptance of your claim at Level B or C will be final.

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(C)

WHAT HAPPENS IF YOUR CLAIM WAS SETTLED IN THE MDL-926 CLASS ACTION AND WAS REDUCED BY 50% BECAUSE YOU HAD ALSO RECEIVED A DOW CORNING IMPLANT, BUT THE SFDCT HAS  REJECTED YOUR PROOF OF MANUFACTURER CLAIM FOR YOUR DOW CORNING IMPLANT?

The most common situation is where a claimant received a Bristol, Baxter or 3M implant and received a disease settlement in the MDL-926 Class Action that was reduced by 50%, because the claimant’s medical records showed they also received a Cronin implant after 1971 or their implant was referred to as “silastic” with a small “s”.  In both instances, the SFDCT will not accept the claimants Proof of Manufacturer claim.

So what happens? The answer: Nothing. The MDL-926 position is they do not abide by the SFDCT’s criteria for what is an acceptable Dow Corning implant, and they will not pay the remaining 50%. The end result is the client receives only 50% of their settlement, while the MDL-926 Claims Board and the SFDCT both will not pay the remaining 50%.

From my conversations with the Claimant Advisory Committee, they are actively pursuing this issue with the MDL-926 Claims Administrator, and are hopeful to resolve this issue so that the MDL-926 Claims Office will award the remaining 50% payment to the claimants.

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(D)

RUPTURE CLAIMS THAT ARE STILL BEING DENIED, WHEN UPPORTING DOCUMENTS DESCRIBE THE IMPLANTS AS LEAKING.

This has to probably be the single most frustrating aspect of the Dow Corning Class Action for claimants who have had their Dow Corning breast implants removed, and the Explantation Report documents that there was silicone that came out of the implant and made contact with the claimant’s body, yet their rupture claim was denied by the SFDCT.

Coupled with the fact that many surgeons had previously informed their patients that their Dow Corning implants would last a lifetime, and taking into consideration the claimant had no control over the “words” the Explant surgeon would use in his report in describing the rupture, many claimants feel let down and betrayed by their surgeons, Dow Corning and the SFDCT. So many claimants have complained to me that it should not make a difference if the word “oozing”, “leaking” or “seeping” is used, if the silicone came out of the implant and made contact with their body. When these types of claims are denied by the SFDCT, the reason is usually because they state there was not a rupture of the implant, but only “gel bleed”, even when it obvious that gel bleed could not account for the volume of silicone that is outside of the implant.

It is the Claims Administrator’s position that to demonstrate a rupture, either the contemporaneous operative report or pathology report must provide visual confirmation of the failure of the elastomer envelope due to a tear or other opening in the envelope. He further states that the Dow plan requirements provide him with no authority to conclude that free silicone found during an explant surgery means the implant is ruptured, unless the above conditions are met.

There was an apparent agreement between the Claimant Advisory Committee and the SFDCT, that when supporting documents show the implants that were removed were “leaking”, that the rupture claim would be accepted.  Many claimants are now receiving “new” Notification of Status letters still denying their rupture claim, even when the supporting documents described the implants as “leaking”.

The Claimant Advisory Committee is aware of this problem and is still trying to work out this issue with the Claims Administrator. If your rupture claim has been denied, you should file an Error and Corrections with the SFDCT. If this is denied, then you can file an Appeal with the Claims Administrator. If the Claims Administrator denies your Appeal, you may file an Appeal before the Appeal Judge.

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(E)

WAITING TIME FOR CLAIMS PROCESSING AND PAYMENTS

The SFDCT has reported that there is currently a one year backlog to process pending Disease Option 1 claims and an approximate 9 month backlog on pending Disease Option 2 claims.  The SFDCT has also stated that the time for re-reviews, error and corrections is approximately 180 days.

Presently, the SFDCT has been reviewing my clients Disease Option 1 claims that were filed in September and October of 2004. I have not received any reviews of Disease Option 2 claims that were filed in 2005. Based on this information that the SFDCT has not started to process and evaluate Disease Option 1 claims that were filed in January of 2005, it is hard to imagine that it will take only 12 months to process a Disease Option 1 claim if it were filed today.

The Claimant Advisory Committee has expressed their concerns over this issue with the Claims Administrator. Based on their conversations with the Claims Administrator, they feel the Claims Administrator and his staff are doing everything possible to improve the processing time.

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(F)

NOTICE OF INTENT CLAIMANTS (NOI) ARE STILL NOT ENTITLED TO RUPTURE OR EXPLANT BENEFITS

Class 5 Notice of Intent Claimants, also referred to as “Conditional Claimants”, are now allowed to make a disease claim, which will be processed and paid by the SFDCT. However, Dow Corning continues to object to the allowance of claims for Explant, Rupture and Expedited Releases, until this issue is resolved. Thus, all Explant and  Rupture claims that have been filed by NOI claimants are being placed on hold. If you are a Conditional Claimant and you have not received a response to your Proof of Manufacturer claim, you should call the SFDCT to find out the status of your claim.