Nuclear Claims Tribunal: Awards

As of December 31, 2006, $91,402,000 in compensation had been awarded under the Tribunal’s presumptive personal injury compensation program (36 medical conditions). This amount has been awarded to or on behalf of 1,999 individuals, some of whom have received multiple awards because they suffered from more than one compensable medical condition.

Of those 1,999 awardees, more than 1,000 have died receiving only partial payment of the compensation awarded for their personal injuries. As of December 31, 2006, a total of $73,261,198 had actually been paid to those awardees or their heirs, leaving an unpaid balance of $18,140,802.

For the first nine months of 2006, an initial payment was made in the amount of 15% of each new or amended award. Effective October 1, 2006, the initial payment level was reduced to 5% of the amount of the compensation awarded.

The Tribunal initially implemented its personal injury compensation program in August 1991. The amounts awarded annually since then are as follows:

(Note: The number of individuals indicated for each year includes those who received an amendment of their compensation, reflecting manifestation of a new condition or additional treatment of the original condition.)

The lower award levels since 1997 should not be seen as a result of any decrease in the ongoing occurrence of compensable medical conditions. Rather, the lower levels of new awards reflect the fact that compensable medical conditions diagnosed from the 1950s through the mid-1990s were documented and awarded during the early years of the program, i.e. from 1991-97. With resolution of those historical cases largely completed, the annual totals since 1998 represent a more accurate picture of the ongoing level of manifestation of compensable conditions.

ELDERLY AWARDEES - Over 50% of the Marshallese who have received personal injury awards have died before receiving full compensation for their injuries. Jortake Enne who is pictured here passed away after receiving only two thirds of her $12,500 award.

Under the funding regime established by the Section 177 Agreement, awards made by the Tribunal were to be paid on an annual pro rata basis. When the first awards were made in August and September 1991, an initial payment was made in the amount of 20%. With additional funding for awards authorized every year on the effective date of the Agreement, the Tribunal instituted its first annual partial pro rata payments in October 1991, distributing checks in the amount of 5% of each award made during the previous two months.

Throughout the following year, initial payments were made in the amount of 25% of each new award and in October 1992 annual payments of 8% were made on all awards. That brought the cumulative total paid for each personal injury award to 33% and an initial payment at that level was made for all new awards during the subsequent year.

Following a 7% annual payment in October 1993, new awardees received a 40% initial payment, bringing them to the same level as previous recipients. After a 10% annual payment in October 1994, the initial payment level was increased to 50%. The October 1995 annual payment of 5% brought the cumulative percentage to 55% and initial payments were made at that rate for awards approved between October 1995 and September 1996.

A Statement of Determination issued on September 30, 1996, said that “A cornerstone of the Tribunal’s payment policy has been a balancing of the interests of existing recipients to receive as much of their awards as possible with the interests of future recipients to be treated fairly and equally.” The statement noted, however, that the reserve of unexpended funds which had been built up during the early years of the Tribunal’s existence had almost been exhausted and that it would be impossible to maintain the 55% initial payment rate on anticipated new awards over the coming year. The statement said that “This shortage of funds suggests that there should be no annual payment at all this year. However, the Tribunal feels it would be unreasonable to completely stop annual payments on such short notice to existing recipients.” Accordingly, a small annual payment of 2% of the net amount of each award was made and the initial payment level was reduced to 25% for awards issued beginning in October of that year.

The 1997 Statement of Determination regarding payment levels said “the Tribunal continues to adhere to the policy of balancing the interests of existing recipients to receive as much of their awards as possible with the interests of future recipients to be treated fairly and equally.” Annual payments were issued at the rate of 2% for those who had previously received 57% of their awards and at the rate of 5% for those who had received only an initial payment of 25%.

From 1998-2000, consistent with the Tribunal’s policy of balancing the interests of existing recipients with those of future awardees, annual payments were made in varying pro rata amounts based upon how much of the award had been paid previously. By the end of 2000, recipients who had been awarded compensation prior to October 1996 had received 66% of their awards, while those after that time had received 50% of their awards.

The fifteenth anniversary of the effective date of the Compact of Free Association and the Section 177 Agreement marked the end of the distribution regime under which the Tribunal was allocated a set amount to make payment of awards ($3.25 million annually following annual amounts of $2.25 million the first three years). In its Statement of Determination of October 3, 2001, the Tribunal noted that while the pro rata distributions had allowed at least some payment to be made to all those who received a personal injury award, it also had the unjust result of stretching payment out over a period of years so that many passed away before receiving full payment.

In order to address that injustice, the Tribunal made an unprecedented distribution of more than $15 million that year, an amount representing half of the remaining unpaid balance of every personal injury award. Those annual payments ranged from 17% to 37.5% of each award. In addition, the Tribunal set the initial payment level for awards made beginning in October 2001 to 50%.

Annual payments totaling approximately $4.3 million were made in October 2002 in amounts ranging from 4% to 25% and the Tribunal maintained an initial payment level for new awards of 50%. In May 2003, however, the Tribunal reduced the initial payment level to 25%. The Order effecting that action noted that the level of the Nuclear Claims Fund at that time was below $10 million.

In its 2003 Statement of Determination, the Tribunal noted that “Serious consideration was given this year to suspending payments to certain categories of recipients, including those born after the testing period and the estates of those who have already passed away. These radical steps would have allowed a greater payment to those older survivors of the testing program in an attempt to maximize their payments while they are still alive, but at the expense of those younger and those who are the beneficiaries of estates of deceased awardees. While the equitable considerations of all claimants to receive some payment were deemed to outweigh the interests of the older survivors, as funds become even more scarce, radical options may have to be reconsidered.”

The 2003 annual payments totaled $2.445 million and ranged from 2% to 35% of each award. Following distribution of those payments, a total of 89% had been paid on each award made prior to October 1996. For awards made during the period from October 1996 to September 2003, the cumulative rate of payment at that time ranged from 60% to 82%.

In its October 2004 Statement of Determination, the Tribunal noted that while it had again chosen not to pursue the strategy of suspending payments to certain categories of recipients, such steps may become necessary in the future. With the value of the Nuclear Claims Fund at about $5 million, the Tribunal issued annual payments totaling nearly $1 million, in amounts from 1-5% of each award. It also reduced the initial payment level on new awards from 25% to 20%.

Annual payments in 2005 were similar to those of the previous year, totaling just under one million dollars ($978,539) in amounts from 1-4%. Those payments brought the highest cumulative payment level to 91% while the lowest level of total payment was 24%. Initial payments for new awards beginning in October 2005 was set at 15%. The 2005 Tribunal statement also said that the anticipated balance of the Nuclear Claims Fund would be reduced to about one million dollars by October 2006 and that “Such a balance will clearly not support payments in even the limited amounts made this year.”

Initial payments made on new awards and the operational costs of the Tribunal did in fact reduce the value of the Nuclear Claims Fund to just over $1 million in October 2006. The Statement of Determination issued that month noted that an annual payment of even one percent would effectively exhaust the Fund, force closure of the Tribunal, and foreclose the possibility of any award or payment for future claimants. The October 2006 statement also acknowledged a recent report of the U.S. National Cancer Institute which estimated that more than 500 cancers would result from exposures to radiation from the testing program in the population present during the testing period and that more than half of those cancers were expected to occur after 2003. (NCI report pdf)

Noting the continuing need to adjudicate claims, the Tribunal confirmed that "There will be no pro rata annual payments for personal injury awards in 2006." The suspension of annual payments was accompanied by a reduction in the initial payment level for new awards from 15% to 5%. As in previous years, the 2006 statement concluded by saying "The inability of the Tribunal to fully pay off existing awards and the continuing flow of new claims and awards continues to evidence the manifest inadequacy of the existing funding provided under the Section 177 Agreement to fully compensate the people of the Marshall Islands for injuries suffered as a result of the Nuclear Testing Program.” (2006 Statement of Determination)

Since its inception in 1988, the Tribunal has endeavored to fulfill the jurisdiction established for it in Article IV of the Section 177 Agreement "to render final determination upon all claims past, present and future, of the Government, citizens and nationals of the Marshall Islands which are based on, arise out of, or are in any way related to the Nuclear Testing Program." It is clear that such a final determination has not yet been made. But it is equally clear that the determinations already reached by the Tribunal render the provisions of the Section 177 Agreement "manifestly inadequate."

Accordingly, as discussed in detail elsewhere, the Tribunal will continue to work cooperatively with the RMI government toward seeking additional compensation from the United States under the "Changed Circumstances" provision of the Section 177 Agreement.

Personal Injury Awards