November 27, 2022

Volume XII, Number 331


Will I Lose My Other Benefits? The Potential Impact of a Camp Lejeune Water Contamination Claim

It's been just almost two months since the historic Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) was signed into law by President Joe Biden on August 10, 2022. Based on pervasive television advertising, we all now know that the PACT Act encompasses the Camp Lejeune Justice Act of 2022 (Justice Act). The Justice Act allows certain people who were exposed to contaminated water at the Camp Lejeune Marine Corps Base to file lawsuits against the United States to recover monetarily for their injuries. Specifically, the Justice Act states that people who were at Camp Lejeune between August 1, 1953, and December 31, 1987, for 30 days or more (both consecutive and non-consecutive days) are eligible to file suit. This includes veterans, family members, non-military workers (civilian contractors), and any others (in utero) who were exposed to the contaminated water between the listed dates.

What isn't as obvious—and what we hope to clarify here—is if and how filing suit under the Justice Act may impact the continued receipt of other government benefits.

The pertinent provision of the Justice Act reads:

(2) Health and disability benefits relating to water exposure--Any award made to an individual, or legal representative of an individual, under this section shall be offset by the amount of any disability award, payment, or benefit provided to the individual, or legal representative--

(A) under--

(i) any program under the laws administered by the Secretary of Veterans Affairs;

(ii) the Medicare program under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.); or

(iii) the Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.); and

(B) in connection with health care or a disability relating to exposure to the water at Camp Lejeune.

PACT Act § 804(e)(2).

Let's unpack this. At its core, the provision is designed to prevent double dipping, i.e., allowing an individual to recoup twice for the same injury. Thus, when it is implicated, the provision will serve to reduce or offset any eventual monetary award by the sum of government benefits already received for related health or disability issues. What it does not do is prohibit or prevent any exposed individual (or their legal representative) from filing a lawsuit in the first instance. Nor does it jeopardize the continued receipt of related government benefits. In fact, several things must be true for the provision to be triggered. First, this provision only applies if an individual has already been receiving government benefits in connection with health care or a disability relating to exposure to the contaminated water at Camp Lejeune. Second, the provision only applies to health and disability benefits received through the Medicaid or Medicare programs or else programs run through the United States Department of Veterans Affairs (VA). Finally, this provision only kicks in when an award is made. This presumes that a lawsuit under the Justice Act was both filed and successful.

So, for example, if you are a veteran and presently receiving VA benefits for tinnitus that developed from repeated exposure to combat noises—such as gunfire, machinery, armored vehicles, and aircraft—the offset is not likely to apply to you. However, if you developed bladder cancer as a result of your exposure to the contaminated water at Camp Lejeune during the relevant time frame and you are already receiving VA benefits for that disease, then any recovery under the Justice Act would be reduced by the bladder-cancer related awards, payments, or benefits but not those related to tinnitus. 

What's the bottom line?

Even if you receive government benefits for a health or disability issue that is related to the contaminated water at Camp Lejeune, you can still file a claim under the Justice Act. If you are ultimately awarded monetary damages as a result of your Justice-Act claim, the award will simply be reduced or offset by the amount of benefits you have already received.

Because the Justice Act is so new and no monetary awards have been granted yet, the precise mechanics of how the offset will work remain to be seen. However, rest assured that you are still eligible to file a claim.

© 2022 Ward and Smith, P.A.. All Rights Reserved.National Law Review, Volume XII, Number 277

About this Author

Isabelle M. Chammas Litigation Lawyer Wilmington, NC, Ward and Smith P.A.
Litigation Attorney

Isabelle helps clients navigate complex business, intellectual property, and product liability disputes. She also assists clients with other general litigation matters. Isabelle works with clients at every phase of the litigation process and advises them on legal strategy in mediations, arbitrations, and trials, drawing on her experience as a law clerk to Chief U.S. District Judge Richard E. Myers II, U.S. District Court for the Eastern District of North Carolina.

Isabelle speaks French and Arabic, skills she honed by studying abroad and working...

Lynwood P. Evans, Ward Smith, Civil Litigation lawyer, Pre Suit Negotiation

Lynwood leads the Litigation practice.  His experience encompasses a wide variety of civil litigation in both state and federal courts.  He has extensive experience in all aspects of litigation, including depositions, hearings, and mediations, as well as, arbitrations, appeals, and cases tried to jury verdict.  Lynwood also counsels individuals and businesses who are currently involved, or could potentially become involved, in litigation.  He also provides national pre-suit negotiation and litigation management services.  He has been rated by his peers as being "...