BP medical settlement’s new interpretation could cut out thousands
David Hammer / Eyewitness News Email:
NEW ORLEANS — Thousands of Gulf oil spill cleanup workers could lose the right to collect medical claims checks of up to $60,700 from BP, thanks to yet another latter-day interpretation of the oil giant’s promises to compensate victims of the 2010 spill.
Last month, BP quietly won a ruling that could save it tens of millions of dollars and severely reduce what Gulf residents can collect for chronic illnesses they developed after helping clean up the company’s mess.
And as with several issues that have delayed payments to businesses that lost money after the spill, the latest dispute over settlement meaning has emerged from just a few words out of hundreds of pages.
U.S. District Judge Carl Barbier ruled July 23, upholding an earlier policy statement from medical claims administrator Matt Garretson. That policy sided with BP’s contention that cleanup workers had to have been diagnosed with particular conditions before April 16, 2012, to qualify for what is called “Specified Physical Condition” payments.
The largest Specified Physical Condition payment is $60,700, which is for claimants whose injuries showed up in the first 72 hours and kept persisting. The fight now is over when those people had to get an official diagnosis from a doctor.
Even if claimants suffered skin or respiratory ailments right away after helping BP clean the oil, Garretson said he reads the settlement to mean that those of them diagnosed after April 16, 2012, have what are called “Later-Manifested Physical Conditions.”
“The parties may have chosen to title the term, ‘Later-Manifested Physical Conditions,’ but they defined the term Š using the word ‘diagnosis,’ and we must apply the terms according to their definitions unless the parties agree to amend or the court instructs otherwise,” Garretson told WWL-TV in an email.
Those “later-manifested” cases need to be proved separately in court, on the “back end” after the main legal fights are over — something that is likely to take several more years.
In affirming Garretson’s decision, Barbier stated that the settlement “clearly defines any condition diagnosed after April 16, 2012 as a Later-Manifested Physical Condition.”
Garretson said he has no power to interpret the settlement or the intention of the parties, but rather must go by the plain meaning. He cites Barbier’s ruling to show that he was simply following the “plain language of the definition (BP and the plaintiffs) chose.”
BP, too, contends there was no real confusion over what these parts of the settlement meant, calling Barbier’s ruling “simply an affirmation of the plain terms of the agreement.”
“This is a straightforward issue,” BP spokesman Geoff Morrell said in a statement emailed to WWL. “Conditions that were or are diagnosed after April 16, 2012, fall into the (Later-Manifested Physical Condition) bucket. Conditions on the Specified Physical Condition list that were diagnosed on or before April 16, 2012, fall into the (Specified Physical Condition) bucket. The Court and (Garretson) were not confused by this clear definition; we can only speculate as to why the (plaintiffs’ attorneys’ steering committee) claims to be confused by it.”
But attorneys for cleanup workers and coastal residents say it’s anything but straightforward.
Attorneys who negotiated the settlement on behalf of cleanup workers and coastal residents – attorneys who are in line to collect billions of dollars in fees – say they thought that BP had agreed to pay $60,700 for chronic conditions – those that appeared within 72 hours of the victim performing cleanup work and persisted for years, regardless of when a doctor diagnosed them.
The settlement defines Later-Manifested Physical Condition as “a physical condition that is first diagnosed in a medical benefits settlement class member after April 16, 2012.” But it defines Specified Physical Condition as a condition “that first manifested or was exacerbated” at specific times. It says nothing about when a Specified Physical Condition had to be diagnosed.
In fact, the plaintiffs say the new ruling renders meaningless the term “later-manifested,” which refers only to when symptoms appeared, not when a doctor diagnosed them.
Garretson said that there are already 500 claimants who acknowledge that they did not get diagnosed until after February 16, 2012, with six months to go before the claim deadline of February 12, 2015.
One of them is Jose Santamaria of Kenner. He was on a cleanup crew in Hopedale for most of 2010, with no protective suits as he picked up the boom laid on the water to catch the spilled oil. He said he had rashes on his chest and arms, but he and other workers couldn’t stop to see a doctor.
He says the diagnosis deadline is unfair. The settlement wasn’t even approved until November 2012, so he doesn’t understand how he and other workers were supposed to know they needed to get a diagnosis before April of that year.
“Having those rashes was a normal everyday thing that we had over there,” Santamaria said. “But it was mainly strictly to work so, besides that, we never had the opportunity to settle down at home and take a look at what was going on, to realize that something was wrong to go to the doctor to see it.”
Even those who went to a doctor before April 16, 2012, are worried. Darrell Caruso of Delacroix is a shrimp boat captain who says he picked up oil-stained boom as a part of BP’s Vessels of Opportunity program. He said oil- and dispersant-soaked water got into his boots and onto his torso because there were no protective suits left.
But cleanup leaders threatened to remove him and his crew from the work if they complained.
“It was either you do it or you lose your job,” Caruso said. “And we needed the job, so we voted on it and we went. We just didn’t realize that it was going to get that wet with chemicals.”
He said he started getting rashes right away, but he didn’t want to complain, again for fear of losing work while fishing was shut down. The rashes and sores would go away and come back even worse. In early 2012, it got so bad on his feet, they turned purple and he said he could barely walk.
He finally went to the hospital, but there was no settlement yet at that point. So, his attorney, Frank D’Amico Jr., doesn’t know if the hospital records will qualify Caruso as “diagnosed” in time.
“It’s not sure under this current ruling whether or not he in fact did a valid presentment because there’s no real diagnosis from a doctor saying, ‘Yes, this chemical caused this in your body,'” D’Amico said.
The lead attorneys for the plaintiffs’ class, Steve Herman and Jim Roy, have also raised concerns to the court that BP could use this ruling to squeeze claimants on both ends. If they filed declaration forms with the claims office and said they exhibited symptoms in the first 72 hours, but are forced to pursue “later-manifested” claims in court, BP could easily turn around and say that their condition does not qualify as a “later-manifested” injury either, Herman and Roy argued.
BP said it had not taken and does not take that position, but also did not say it wouldn’t make that argument in the future during “back-end litigation.”
Plaintiffs said they believed the “later-manifested” category was designed for cancer and other “latent” diseases that would not have showed up right after exposure to the oil and chemicals. And BP’s own attorney, Rick Godfrey, gave that very definition when he asked Barbier to accept the settlement in November 2012.
Later-manifested physical injuries are “injuries that have not manifested themselves today, that perhaps show up, we hope not, but show up five years from now or 10 years from now,” Godfrey said in court.
But this spring, BP began arguing that it shouldn’t matter when a cleanup worker first noticed the illness or medical condition, including rashes, lesions and breathing problems.
It’s been more than three months since Garretson issued his interpretation, but it and Barbier’s decision last month are buried deep in more than 13,000 court filings in the case, and WWL-TV is the first media outlet to report on the dispute.
The impact could be enormous. Court filings set the number of people who worked on oil spill cleanup at 170,000, and another 100,000 or more could qualify for medical compensation as residents of certain shoreline communities.
Studies cited in plaintiffs’ court filings put the percentage of workers reporting medical conditions in previous oil spills at 11-18 percent, so that suggests that as many as 30,000 BP oil spill workers may have been injured.
So far, Garretson says he’s received 10,500 claims, but claimants have until next February to file.
The company has been accused of repeatedly redefining individual clauses of its massive settlement agreements to try to drastically change the way payments are calculated or claimants are ruled eligible.
Last year, BP won a key victory on what accounting rules should be used to calculate claimants’ business losses under the economic damage settlement. That change on the accounting procedures has held up thousands of claims for months, so much so that Garretson’s counterpart on the economic settlement, Patrick Juneau, recently asked claimants to be patient as he wades through a new, time-consuming way of processing their claims.
BP also tried, unsuccessfully, to reinterpret the eligibility rules, arguing that claimants who could not prove their economic losses came from the oil spill should not be compensated just because they met an economic formula set up in the settlement agreement.
Barbier and a panel of judges at the 5th Circuit Court of Appeals ruled that BP lawyers agreed to that language and also approved of it when warned that some claimants whose losses were not spill-related would qualify for payment.
BP is now appealing that decision to the U.S. Supreme Court.