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BP's Settlement With Plaintiffs Addresses Unpaid Medical Claims

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This article first appeared in The Louisiana Weekly March 12, 2012

Gulf residents will have another shot at getting spill-related, medical claims paid following a proposed settlement between BP and plaintiffs, announced in early March. Those that weren't compensated by the Gulf Coast Claims Facility -- set up after the spill to pay victims -- are waiting to learn more about the new system, including its proof of illness requirements. The GCCF paid for bodily injuries from BP's rig explosion nearly two years ago but rejected claims for other spill ailments.

BP and the Plaintiffs' Steering Committee or PSC, representing claimants, are working on a final settlement to present to U.S. District Judge Carl Barbier in New Orleans for his approval by mid-April. The agreement divides plaintiffs or claimants into two class actions, one for economic losses and another for medical issues. The settlement, which doesn't cover federal government complaints, is for an uncapped amount but BP estimates it will cost $7.8 billion.

Last week, the GCCF was replaced by a system overseen by the court, and GCCF paymaster Ken Feinberg is stepping aside.

On Thursday, Feinberg said "the GCCF did not pay for respiratory illnesses, skin conditions or other spill-related ailments. We were getting ready to pay a few of these claims after receiving input from medical and scientific experts."

But, he said, "that will now be the responsibility of the GCCF transition staff and the new settlement personnel. Patrick Juneau is the new, court-supervised administrator of the GCCF." He added "I believe he is a superb choice," without elaborating.

On March 8, Judge Barbier appointed Richmond, Va. attorney Lynn Greer to serve as transition coordinator. Patrick Juneau, a Lafayette, La.-based lawyer, will take over for Greer and work as claims administrator if Judge Barbier approves the March 2 settlement.

As for the PSC, its attorneys represent more than 100,000 individuals and businesses -- fishermen, restaurateurs, seafood firms, charter boat captains, hotel operators, condo owners and others affected by the rig explosion.

Under the settlement, residents along the Gulf Coast can be compensated for a range of spill-related conditions, including respiratory, skin and stomach ailments and headaches.

Tony Buzbee, partner in The Buzbee Law Firm in Houston, represented 19 injured, Deepwater Horizon rig workers, who were all paid by the GCCF for a combined total that exceeded $100 million. "I have a lot of cleanup workers exposed to dispersants, benzene and whatnot, but never tried to get their claims settled with Ken Feinberg," Buzbee said last week. "He told me he'd be happy to look at the claims but needed medical records."

Buzbee continued, saying "I don't know the new particulars of the settlement, but am told they will be more generous and might have a different approach to medical proof. I'm hoping more people will get paid for their ailments in the new process."

According to a March 3 announcement from the PSC, "cleanup workers can submit a claim with a declaration, under penalty of perjury, describing the conditions or symptoms after exposure, even if they did not seek medical treatment at the time of exposure." The statement also said:

"Residents and workers who suffer chronic symptoms or conditions from exposure will be required to submit medical records from the time of exposure and for ongoing medical care. Coastal residents and cleanup workers who experience future manifestation of illness retain the right to sue BP without proof of liability for the spill and exposure."

Fishermen who worked for BP's Vessels of Opportunity Program or VOO, doing oil cleanup from boats, are among those who came into contact with oil and the dispersants used to get rid of it. BP didn't allow VOO workers to wear respirators during cleanup work.

Dr. Mike Robichaux, who treats patients with spill ailments in Raceland, La., said "many of the people who are ill in southeast Louisiana are VOO workers -- largely from Lafourche, Plaquemines and St. Bernard Parishes. There are also scores of patients from Louisiana and elsewhere who are ill but didn't work directly with toxic chemicals. They were exposed through fumes, sprays, skin contact with contaminated water, and in some cases by eating and drinking contaminated food."

Robichaux said some coastal residents don't have health insurance and didn't see a doctor when their symptoms first appeared -- which was sometimes well after the spill. He worries that claims of at least some of the victims without medical records might be declared ineligible.

Under the proposed settlement, BP has agreed to provide a $105 million grant to establish a five-year Gulf Coast Region Health Outreach Program. Coastal residents, including those who aren't class members in the settlement, will be allowed to participate in the program, which as described so far, will expand primary and mental health care and offer access to environmental health specialists. Some of the planned money will be spent on education about Gulf health issues.

Dr. Robichaux said he wonders who the environmental health specialists will be, saying "to this date, none have stood up and made a clear statement of their intentions" to address spill ailments.

Under the settlement, medical claims will be resolved based on "a matrix for certain, currently-manifested physical conditions." Qualifying class members will be eligible for 21 years of periodic, medical consultation. Class members claiming "later-manifested physical conditions,"or symptoms that showed up some time after the spill, can make their claims through a mediation or litigation process.

When asked if the Louisiana Dept. of Health and Hospitals will be involved in BP's proposed Gulf health outreach, DHH spokesman Ken Pastorick said "DHH was not a party to the lawsuit, and therefore is not aware of the particulars of the settlement."

And for their part, hospitals contacted last week in New Orleans and Southeast Louisiana had little to say about the settlement.

Robichaux said treatment will have to include more than conventional medicine. "When I tried using conventional medicine on spill victims for about a year, it did little more than relieve their symptoms," he said. But since then, he has had success with a detoxification program. Robichaux said spill workers have conditions similar to soldiers who returned from the 1991 Gulf War with a multi-symptom disorder, known as Gulf War Syndrome, from exposure to toxic chemicals.

The U.S. Environmental Protection Agency (EPA) classifies benzene, which is present in crude oil, as a known human carcinogen. Volatile organic compounds -- including benzene, ethylbenzene, toluene and xylene -- are present in oil, and at elevated concentrations can cause health problems, including cancer, according to the EPA.

The Louisiana Dept. of Health and Hospitals from late May-late September 2010 recorded 415 health complaints thought to be related to oil-spill pollutants or heat stress from working near the spill. Of those, 329 reports were from workers and 86 were from the general population. Symptoms included headaches, dizziness, nausea, vomiting, weakness, fatigue and upper respiratory irritations. Eighteen workers had short hospitalizations. The state's spill surveillance reporting on health complaints ended in late September 2010 as the risk of exposure diminished, according to Pastorick. Since then, the LDHH has received eight more, spill-related complaints about workers, and they were self-reported, or reported by health-care providers, hospitals or the Louisiana Poison Center's 24-hour hotline, he said.

BP has offered several explanations for not issuing respirators to VOO workers. In its Frequently Asked Questions for Vessels of Opportunity Occupational Health, BP said on June 5, 2010 "we are not providing respirators for workers away from the source of the spill because there are no indications of volatile organic compounds or VOCs in those areas." The FAQ went on to say "if used under certain conditions in high temperatures, respirators can increase the risk of heat stress and heat stroke."

When asked last week about BP's policy regarding protective clothing and respirators for clean-up workers, including VOO workers, BP spokesman Curtis Thomas said "response workers followed carefully established work procedures, supplemented by personal protective equipment, such as gloves, boots and protective clothing, to minimize their contact with crude oil and dispersants." He refrained from commenting on respirators, but said extensive air monitoring was conducted by government agencies and BP to make sure airborne concentrations of chemicals remained below federally established limits. He said if airborne concentrations increased, actions were required to keep them at safe levels.

For spill-related claims of all types, the GCCF as of March 7 had paid $6.1 billion from a $20 billion fund set up by BP. Florida claimants received the most money, followed by applicants from Louisiana, Alabama, Mississippi and Texas. During the transition to a new system this spring, GCCF claims payments will be issued, but with some changes. Under court order, claimants with final offers from the GCCF can recover 60 percent of their money immediately. And if they're eligible under the new program, they can opt for the remaining 40 percent or wait for new awards -- which might be higher but could take time to calculate.

If you have medical symptoms from the spill, the National Institute of Environmental Health Sciences is interviewing cleanup workers and volunteers for a research study. Gulf Coast residents interested in participating can phone 1-855-NIH-GULF or visit www.NIHGulfStudy.org

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