CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1683

Claimant Mr. Tyrus T. Thomas

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $12,000

FACTS 

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

was discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT

On 10 February 2012, Mr. Tyrus T. Thomas (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $12,000 in loss of profits and earning capacity resulting 

from the Deepwater Horizon oil spill.1

At the time of the oil spill, the Claimant was a longshoreman for Pacorini Global Services, where 

he had been employed since 2005.2 According to a letter sent by Pacorini on the Claimant’s 

behalf, Pacorini’s corporate office in Houston, TX, issued an order to cease all operations on 22 

April 2010.3 One week later, Pacorini extended this order indefinitely.4 Pacorini rescinded the 

order on 01 August 2010.5

The Claimant alleges that he was unable to work during the cease order, and, as a result, lost 

$12,000 in wages.6 The Claimant did, however, receive $594 in unemployment compensation 

during this time.7

In a letter dated 03 April 2012, NPFC requested additional information from the Claimant.8

NPFC asked the Claimant to provide the following documents:

• Employment letter stating the Claimant’s actual earnings and how much he should have 

earned during the period in question (22 April 2010 through 01 August 2010);

• Signed copies of U.S. Individual Income Tax Returns for 2009 and 2011, including all 

schedules;

• All Forms 1099 for 2009 and 2010;

• W-2s for 2009 and 2010 from all employers; and

1 Optional OSLTF Claim Form, signed on 26 January 2012. 

2 Employer Verification Letter, dated 15 October 2010.

3 Cease Order Verification Letter, dated 7 November 2011.

4 Cease Order Verification Letter, dated 7 November 2011.

5 Cease Order Verification Letter, dated 7 November 2011.

6 Optional OSLTF Claim Form, signed on 26 January 2012.

7 Response to Additional Information Request, signed 10 April 2012; 2010 Form 1040, U.S. Individual Income Tax 

Return.

8 Additional Information Request, dated 03 April 2012.

 
• Any paystubs from April 2010 through August 2010, or alternatively, bank statements 

showing deposits of earned money.9

The Claimant responded with a letter of his own, dated 10 April 2012.10

APPLICABLE LAW 

Under the Oil Pollution Act of 1990 (OPA), at 33 U.S.C. § 2702(a), responsible parties are liable 

for removal costs and damages resulting from the discharge of oil into or upon the navigable 

waters or adjoining shorelines or the exclusive economic zone, as described in Section 2702(b) 

of OPA. 

The OSLTF is available to pay claims for uncompensated damages pursuant to 33 U.S.C. § 

2712(a)(4) and § 2713 and the OSLTF claims adjudication regulations at 33 C.F.R. Part 136. 

One type of damages available pursuant to 33 C.F.R. § 136.231 is a claim for loss of profits or 

impairment of earning capacity due to injury to or destruction of natural resources.

Under 33 C.F.R. § 136.233 a claimant must establish the following:

(a) That real or personal property or natural resources have been injured, destroyed, or lost;

(b) That the claimant’s income was reduced as a consequence of injury to, destruction of, or 

loss of property or natural resources, and the amount of that reduction;

(c) The amount of the claimant’s profits or earnings in comparable periods and during the 

period when the claimed loss or impairment was suffered, as established by income tax 

returns, financial statements, and similar documents. In addition, comparative figures for 

profits or earnings for the same or similar activities outside of the area affected by the 

incident also must be established; and

(d) Whether alternative employment or business was available and undertaken and, if so, the 

amount of income received. All income that a claimant received as a result of the incident 

must be clearly indicated and any saved overhead and other normal expenses not incurred 

as a result of the incident must be established.

Under 33 C.F.R. § 136.105(a) and § 136.105(e)(6), the claimant bears the burden of providing to 

the NPFC, all evidence, information, and documentation deemed necessary by the Director, 

NPFC, to support the claim.

Under 33 C.F.R. § 136.235, the amount of compensation allowable for a claim involving loss of 

profits or impairment of earning capacity is limited to the actual net reduction or loss of earnings 

or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments 

for—

(a) All income resulting from the incident;

(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertake, but reasonably 

available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and 

(e) State, local, and Federal taxes.

9 Additional Information Request, dated 03 April 2012.

10 Response to Additional Information Request, signed 10 April 2012.

 
DETERMINATION OF LOSS 

Claimant’s Submission to the OSLTF

To support this claim, the Claimant submitted the following documentation:

− Optional OSLTF Claim Form, signed on 26 January 2012;

− Page one of GCCF Follow-Up to Previous Denial Letter, dated 12 October 2011;

− Employment Verification Letter from Pacorini Global Services, dated 15 October 2010;

− Letter from Pacorini Global Services describing the Claimant’s inability to fulfill his 

offshore employment work as a result of the oil spill;

− 2010 Form 1040, U.S. Individual Income Tax Return;

− Photo Identification, which includes a copy of the Claimant’s driver’s license, as well as 

a number of employer and workplace identification cards; and

− Letter responding to NPFC’s request for additional information, dated 10 April 2012.

Prior to presenting this claim to the NPFC, the Claimant presented an Emergency Advance 

Payment Claim (EAP), a Second Quarter Interim Payment Claim (ICQ22011), and a Full 

Review Final Claim (FRF) to the GCCF.11 The Claimant submitted the EAP on 14 October 

2010, the ICQ22011 on 26 May 2011, and the FRF on 25 October 2011. The GCCF assigned 

Claimant ID # 3181262 to the Claimant, and assigned the EAP claim # 236631, the ICQ22011 

claim # 9389710, and the FRF claim # 9389806.12 The GCCF denied payment on the EAP and 

ICQ22011 claims, and appears to have not taken action on the FRF claim since receiving it.13

On 10 February 2012, the Claimant presented this claim to the NPFC, seeking $12,000 in loss of 

profits and earning capacity damages.14 Because the Claimant first presented this claim to the 

GCCF, who denied the claim or has not acted upon the claim within 90 days, the NPFC may 

adjudicate this claim.

NPFC Determination

Under 33 U.S.C. § 2702(b)(2)(E) and 33 C.F.R. Part 136, a claimant must prove that any loss of 

income was due to injury, destruction or loss of real or personal property or of a natural resource 

as a result of a discharge or substantial threat of a discharge of oil. Under 33 C.F.R. § 136.105(a) 

and § 136.105(e)(6), the claimant bears the burden of providing all evidence, information, and 

documentation deemed necessary by the Director, NPFC, to support the claim.

In order to prove a claim for loss of profits damages, a claimant must provide documentation 

sufficiently proving (1) that the claimant sustained an actual financial loss, and (2) that the 

discharge of oil resulting from the Deepwater Horizon oil spill caused that loss. Furthermore, for 

claims alleging loss of profits and earning capacity damages, “compensation is limited to the 

actual net reduction or loss of earnings or profits suffered.”15

Any damages that the Claimant has submitted to account for future losses or speculative 

damages are denied.

11 GCCF Claimant Status, accessed on 21 May 2012. 12 GCCF Claimant Status, accessed on 21 May 2012. 13 GCCF Claimant Status, accessed on 21 May 2012. 14 Optional OSLTF Claim Form, signed on 26 January 2012. 15 33 C.F.R. § 136.235.

 
The Claimant is seeking $12,000 in loss of profits and earning capacity damages.16 The Claimant 

calculated these losses by averaging the earnings through the relevant portion of the year—22 

April 2010 through 01 August 2010.17

The Claimant alleged that he received $594 in unemployment compensation during the time he 

was unable to work as a longshoreman.18 Because “compensation is limited to the actual net

reduction or loss of earnings or profits suffered,”19 $594 of the claim is denied as “income from 

alternative employment of business undertaken.” 20

Claimant alleges that he lost $12,000 in earnings because of Pacorini’s cease order.21 As NPFC 

has denied $594 of this claim, the following analysis applies only to the remaining $11,406 in 

claimed losses.

In a letter dated 03 April 2012, NPFC asked the Claimant to provide supporting documentation 

to help prove his alleged loss, including a letter from his employer quantifying how much the 

Claimant actually earned and should have earned during the cease order, prior and subsequent 

year tax returns (including schedules), Form 1099 for 2009 and 2010, W-2s for all employers for 

2009 and 2010, and any paystubs (or, alternatively, bank statements showing deposits from 

earned income) from the relevant time period. 22

The Claimant failed to provide any of the requested documents. When addressing the 

employment letter request, the Claimant directed the NPFC to the employment letter sent with 

his original submission package.23 That letter did not address the requested information—i.e., 

how much the Claimant actually earned and should have earned during 22 April 2010 and 01 

August 2010.24

The Claimant alleged that he had already sent in signed copies of his 2009 and 2011 tax returns, 

but stated that he would include copies with the response to NPFC’s addition information request 

as well.25 The Claimant did neither. The Claimant submitted only his 2010 Form 1040 with his 

original submission, but did not include the associated Schedule C, which would outline where 

$22,789 in business income came from.26

The Claimant also did not provide his Form 1099 for 2009 and 2010, claiming that they were 

“non applicable.”27 Similarly, the Claimant did not provide W-2s for 2009 and 2010, saying that 

they need to be reissued.28 The Claimant did not indicate whether he had taken any action to 

have those W-2s reissued.29 Finally, the Claimant says that he does not have the pay stubs from 

April 2010 through August 2010, and did not address the alternative request for bank 

statements.30

16 GCCF Claimant Status, accessed on 21 May 2012. 17 Response to Additional Information Request, signed 10 April 2012. 18 Response to Additional Information Request, signed 10 April 2012. 19 33 C.F.R. § 136.235. 20 33 C.F.R. § 136.235. 21 Optional OSLTF Claim Form, signed on 26 January 2012. 22 Additional Information Request, dated 03 April 2012. 23 Response to Additional Information Request, signed 10 April 2012. 24 Cease Order Verification Letter, dated 7 November 2011. 25 Response to Additional Information Request, signed 10 April 2012. 26 2010 Form 1040, U.S. Individual Income Tax Return, page 1. 27 Response to Additional Information Request, signed 10 April 2012. 28 Response to Additional Information Request, signed 10 April 2012. 29 Response to Additional Information Request, signed 10 April 2012. 30 Response to Additional Information Request, signed 10 April 2012.

 
On the information that the Claimant provided, it is impossible to determine whether or not the 

Claimant sustained a financial loss. Despite NPFC efforts to obtain relevant information, the 

Claimant has not provided any sort of income history to compare to his 2010 earnings. Without 

that information, NPFC cannot determine if the Claimant has suffered a financial loss in the first 

place. 

The Claimant’s submissions show only that he made $27,484 in wages, $22,789 in business 

income, and $594 in unemployment compensation. Without W-2s, NPFC cannot determine the 

source of the wages, and without a Schedule C, the NPFC cannot determine the source of the 

business income. NPFC similarly cannot determine to what extent, if any, this business income 

may have offset any wages the Claimant might not have received due to Pacorini ceasing 

operations.

Because the Claimant has failed to prove a financial loss in the first instance, he has also failed to 

prove that the Deepwater Horizon oil spill caused a loss. As such, the Claimant has failed to 

meet his burden on either required showing.

This claim is denied because the Claimant failed to meet his burden to demonstrate (1) that he 

sustained a loss in the amount of $11,406, and (2) that the alleged loss is due to the injury, 

destruction, or loss of property or natural resources as a result of a discharge or substantial threat 

of a discharge of oil.

Accordingly, the Claimant’s claim of $12,000 is denied in its entirety.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 5/23/12

Supervisor’s Action: Denial approved

Supervisor’s Comments: