EEOICPA Part B/E Benefits Offset Worksheet

(For internal DEEOIC use only)

 

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 filed

     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 Occupational/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 occupational/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 Occupational/Covered

Illness to be 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 Part B/E 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 future Part E lump-sum

payments and/or 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 DOJ 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 payment and future payments.  The “value” of future payments is their present value, not the sum of the future payments (which will 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 value on a future payment that is contingent upon an event that has not yet taken place, such as the diagnosis of another 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.  However, if the event in question has occurred by the time a later award under Part E becomes payable, any payment for that event must be added to the amount entered on Line 1, and the Worksheet must be completed again.

 

Whenever an occupational/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 before the 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 employee received for his occupational/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/covered illness that was compensable under 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 occupational/covered illness.  If the claimant wants to allocate more than 50% to the other parties, he 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.  Any situations where this matter is unclear should be referred to the National Office for guidance.

 

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.

 

 

        July 2005                                     EEOICPA Bulletin 05-04

Attachment 1