EEOICPA Benefits Offset Worksheet

(For internal DEEOIC use only)

 

Covered Employee:

 

Claimant:

 

Claim Number:

 

1.   Gross Settlement/Final Judgment Amount.......$__________________

 

2.   Was Line 1 split between multiple parties?.................Y / N

 

     a.   If yes, go to either Step 3 or Step 4

 

     b.   If no, and Line 1 was paid to the employee or

     another person with no independent cause of action,

     deduct amounts for any other causes of action or for

     medical treatment prior to date EEOICPA claim was

     from Line 1 (see Instruction 2).  Enter balance here

     and go to Step 5.............................$__________________

 

3.   Allocation Between Parties Provided by Judge or Jury:

 

     a.   To Employee for Covered Illness (do not

include payments for medical treatment prior

to date EEOICPA claim was filed).............$__________________

 

     b.   To Employee for Other Damages (if any)..$__________________

 

     c.   To Other Party(s) (list separately).....$__________________

 

          To Other Party..........................$__________________

 

          To Other Party..........................$__________________

 

4.   CE Allocation Between Parties (all other cases):

 

     a.   Standard allocation for payment split between

          living employee and other parties is 75% of

          Line 1, after deducting amounts for any other

          causes of action or for medical treatment prior

          to date EEOICPA claim was filed.  Enter result

          here and go to Step 4c..................$__________________

     b.   Standard allocation for payment to deceased

          employee with other parties is 50% of Line 1,

          after deducting amounts for any other causes

          of action or for medical treatment prior to

          date EEOICPA claim was filed.   Enter result

          here and go to Step 4c..................$__________________

 

     c.   Good cause shown for different allocation?............Y / N

 

d.   Different allocation for covered illness of

          employee................................$__________________

 

5.   Amounts Paid to Attorney/Firm for:

 

     a.   Costs of Suit (see Instruction 3).......$__________________

 

          Divide costs by gross settlement to determine

          costs percentage (Line 5a/Line 1)...................._____%

 

     b.   Multiply Line 2b, 3a, 4a, 4b or 4d (one only)

     by the costs percentage.  Enter here....$__________________

 

     c.   Attorney Fees...........................$__________________

 

          Divide attorney fees by gross settlement to

          determine attorney fees percentage (Line 5c/Line 1).._____%

 

     d.   Multiply Line 2b, 3a, 4a, 4b or 4d (one only)

     by the LESSER of attorney fees percentage

     or 40%.  Enter here.....................$__________________

 

6.   Net Amount of Payment for Covered Illness to be Offset:

 

     a.   Subtract Line 5b from Line 2b, 3a, 4a, 4b or

4d, as appropriate.  Enter balance here......$__________________

 

     b.   Subtract Line 5d from Line 6a to arrive at amount

to be offset.  Enter result here.............$__________________

 

7.   Claimant’s Entitlement to EEOICPA Benefits:

 

a.   Amount of unpaid lump-sum payment.......$__________________

 

 

     b.   If Line 7a is larger than Line 6b, subtract

Line 6b from Line 7a and enter balance due to

claimant here................................$__________________

 

     c.   If Line 7a is smaller than Line 6b, subtract

     Line 7a from Line 6b and enter amount of surplus

     to be recovered from medical benefits here...$__________________

 

* * * * * * * * * * *

 

INSTRUCTIONS FOR COMPLETING THE WORKSHEET

 

1.   Putting a Value on a Settlement or Judgment.  EEOICPA benefits

are not reduced if benefits awarded by the Department of Justice under section 5 of the RECA were reduced by the full amount of the payment received by the uranium worker or the survivor(s).  However, if the

amount of the payment received exceeded the $100,000 that can be

awarded under section 5 of the RECA, any EEOICPA benefits payable

must be reduced to account for the amount of the payment that was

in excess of $100,000.  This amount is entered directly on Line 6b,

and only Step 7 of the Worksheet needs to be completed.

 

A payment can include both an initial cash payment and some future payments.  The “value” of future payments is the present value of

the future payments, not the sum of all the future payments (which

would always be more than the present value of the future payments).

If the future payments are made through an annuity, the CE may accept

the purchase price of the annuity as the present value of the future payments.

 

Do not attempt to put a dollar value on any future payment that is contingent upon an event that has not yet taken place, such as the diagnosis of an additional medical condition.  This particular type

of future payment cannot be valued and is not to be included in the

amount listed on Line 1 of the Worksheet.

 

Whenever a covered illness is aggravated by medical malpractice, any payment on a final judgment or settlement relating to the malpractice

is an amount that must be reported to OWCP and included in the amount listed on Line 1.  If the malpractice payment is only a reimbursement

for medical treatment provided prior to the date the covered employee filed a claim for EEOICPA benefits, deduct the malpractice payment at

Line 2b, 3a, 4a or 4b of the Worksheet.  In all other situations, the

CE must refer the case to the National Office. 

 

2.              Allocating a Joint Recovery Between Multiple Parties.  A payment

on a final judgment or settlement is a joint recovery only if it was

paid to multiple parties.  Joint recoveries are “allocated” or split

up between multiple parties at either Step 3 or 4 of the Worksheet.

If multiple parties brought a lawsuit or sought a settlement, but

only one party received a payment, fill in the appropriate amount

on Line 2b of the Worksheet IF THE PARTY WHO RECEIVED THE PAYMENT

WAS THE EMPLOYEE OR ANOTHER PERSON WITH NO INDEPENDENT CAUSE OF

ACTION.  

 

If someone other than these two specific parties received the

entire payment and the employee was alive at the time it was

paid, no offset is required and the Worksheet does not need

to be completed.

 

If a judge or jury specifies how to allocate a joint recovery

between the parties, use that allocation to fill in the

appropriate blanks in Step 3.  In all other situations

involving a joint recovery, the CE automatically allocates

25% of the payment to the other parties for their loss of

consortium and enters the remaining 75% on Line 4a of the

Worksheet as the amount that the living covered employee

received for his or her covered illness.  If the claimant

wants to allocate more than 25% of the joint recovery to

the other parties, he or she must submit evidence and legal

argument to the CE showing that a higher percentage is

appropriate.  This evidence MUST show that:

 

A.              State law in the relevant state provides a cause of

Action for loss of consortium for the family member to whom

the recovery is attributed, and

 

B.              A cause of action for loss of consortium was asserted

by that family member, either in the same action or in separate

actions.

 

If an employee incurred an occupational illness that was covered

by EEOICPA and died before receiving a payment out of a joint

settlement or judgment, the CE automatically allocates 50% of

the amount listed on Line 1 to the other parties for their causes

of action and enters the remaining 50% on Line 4b of the Worksheet

as the amount that the deceased employee’s estate received for his

or her covered illness.  If the claimant wants to allocate more

than 50% to the other parties, he or she must submit evidence

and legal argument to the CE showing that a higher percentage

is proper.  This evidence MUST show that:

 

A.   State law in the relevant state provides a cause of action

for loss of consortium or wrongful death for the family member

to whom the recovery is attributed, and

 

B.   A cause of action for loss of consortium or wrongful death

was asserted by that family member, either in the same action

or in separate actions.

 

To make these required showings in either situation described

above, the claimant can submit a copy of the complaint filed

on behalf of the spouse and/or children, and citations to

appropriate state case law or statutes.  If the CE determines

that the evidence and argument support allocating a higher

percentage to the other parties, thereby resulting in a lower

allocation to the employee, the lower allocation to the employee

should be entered on Line 4d.

 

3.   Deductions for Costs of Suit and Attorney Fees.  Costs that

may be listed on Line 5a of the Worksheet are reasonable

out-of-pocket costs and expenses involved in bringing a

lawsuit, but do not include fees paid to co-counsel or

normal office expenses like secretary or paralegal services

or in-house record copying costs.  Before the CE may approve

the deduction of any costs, the costs MUST be itemized so

the nature of each individual cost may be evaluated by the

CE to ensure that it is allowable.  Costs that are allowable

include filing fees, travel expenses, record copy services,

witness fees, court reporter costs for transcripts of hearings

and depositions, postage, and long distance telephone calls.

Once the allowable costs have been calculated and listed on Line

5a, the CE must divide these costs by the amount of the gross

recovery listed on Line 1 of the Worksheet to determine the

percentage of the gross recovery that is represented by the

allowable costs.  Once this percentage has been calculated,

the CE must multiply it by the amount listed on Line 2b (if the

only party paid was the employee or another person without an

independent cause of action), or the amount listed on Line 3a,

4a, 4b or 4d (if multiple parties were paid) to calculate the

costs to be deducted from the recovery.  This last figure is

the amount to be entered on Line 5b.

 

Attorney fees submitted for consideration should be entered on

Line 5c of the Worksheet.  Using the same basic calculation

method used for costs, the CE should divide Line 5c by Line 1

to determine the percentage of the gross recovery that is

represented by the attorney fees.  Enter this percentage in

the space provided after Line 5c.  In general, any fee that

exceeds 40% of the figure listed on Line 1 will be considered unreasonable.   To determine the amount of allowable attorney

fees to be deducted, the CE must multiply the amount listed

on Line 2b (if the only party paid was the employee or another

person without a cause of action of their own), or the amount

listed on Line 3a, 4a, 4b or 4d (if multiple parties were paid),

by the LOWER of the attorney fees percentage that was entered in

the space after Line 5c, or 40%, and enter the resulting amount

on Line 5d.  If the attorney fee percentage exceeds 40%, the

CE should inform the claimant of this and allow an opportunity

to establish that an attorney fee in excess of 40% is reasonable.

 

The circumstances which should be taken into account in determining

the reasonableness of both attorney fees and costs of suit for

the purpose of offsetting EEOICPA benefits include, among other

things, prevailing local fees, cases of similar complexity and

the amount of the gross settlement or final judgment at issue.  Determinations of the CE in these areas are made for the sole

purpose of administering § 7385 of the EEOICPA and do not have

any effect on a fee agreement between an attorney and client

or any other matter not involving the application of the Act.