CLAIM SUMMARY / DETERMINATION FORM

Claim Number N10036-1420

Claimant Mark Spencer

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $20,000.00

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 

claims for certain individual and business claims on behalf of BP. 

CLAIM AND CLAIMANT

On 12 September 2011, Mark Spencer (Claimant) presented an optional Oil Spill Liability Trust 

Fund (OSLTF) claim form seeking $20,000.00 for loss of profits and impairment of earnings 

capacity to the National Pollution Funds Center (NPFC) alleging damages resulting from the 

Deepwater Horizon oil spill. 

The Claimant worked as an oil response cleanup worker for USA Environmental from 15 May 

2010 to 16 August 2010.1 The Claimant alleged damages resulting from the premature ending of 

his employment. The Claimant is alleging damages due to a skin rash and other personal injury

suffered because of contact with the oil precluding him from finding other employment. 

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 which is administered by the NPFC, is available, pursuant to 33 U.S.C. § 2712(a)(4) 

and § 2713 and the OSLTF claims adjudication regulations at 33 C.F.R. Part 136, to pay claims 

for uncompensated damages. 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 

1 GCCF Full Review Final payment Claim Form.

 
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.

(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.

DETERMINATION OF LOSS 

Claimant’s Submission to the OSLTF

To support his claim, Claimant submitted 

1) Optional OSLTF claim form dated 12 September 2011

2) GCCF Full Review Final payment Claim Form 

3) Copies of Texas drivers license, TWIC card, and other contractor identification

4) Employee earning report from 21 May 2010 to 27 August 2010

5) Statement of Unemployment Benefits from Texas Workforce Commission

6) Various doctors visits and medical data

7) US District Court, Eastern District of Louisiana MDL Direct Filing Short Form 

Claimant seeks lost profits and impairment of earnings capacity in the amount of $20,000.00.

Claimant’s Optional OSLTF Claim form indicated that Claimant filed a claim in the 

multidistrict litigation now pending in the United States District Court for the Eastern District of 

Louisiana (MDL-2179 In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf Of 

Mexico, on April 20, 2010) against BP (the “MDL”) on 20 April 2011. Although under the 

statute the NPFC may not approve and certify the payment of a claim during the pendency of an 

action by the person in court to recover costs which are the subject of the claim, the NPFC may 

adjudicate such a claim to determine whether it may be compensable. Where appropriate, such a 

claim may be denied.
Prior to presenting his claim to the NPFC, Claimant filed Full Review Final claim (FRF) with the 

GCCF and was assigned Claimant ID #3507702 and claim #9331240.2 This claim was denied on 

20 June 2011.3

 Based upon the evidence provided by the Claimant, it appears that the subject 

matter for each of the GCCF claims is the same as the subject matter of his claim before the 

NPFC, i.e., that he had impairment of earnings and physical injury as a result of the Deepwater 

Horizon oil spill. The NPFC has not been able to confirm the amount of the FRF as of the date 

of this determination. The NPFC deems the GCCF claim to be properly presented to the 

Responsible Party and to the extent the amount of the claim presented to the RP is equal to or 

greater than the amount currently presented to the NPFC, the subject claim is properly presented

to the NPFC. Accordingly, this Claim Summary Determination for NPFC Claim N10036-1420 

considers and addresses the loss of earnings up to the amount of $20,000.00 for the claim 

presented to the Responsible Party.

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 or destruction or loss of real or personal property or 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 to the NPFC all evidence, 

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

The NPFC considered all the documentation submitted by the Claimant. 

The Claimant worked as an oil spill response worker after the oil spill from 15 May 2010 to 16 

August 2010.4 This portion of his claim is denied because but for the oil spill, he would not have 

been employed doing oil spill response work. The Claimant gained employment and earnings as 

a result of the oil spill as opposed to incurring impairment to his earnings as alleged. The 

Claimant has provided no documentation to substantiate his alleged loss of profits and 

impairment of earnings capacity or to show that his alleged loss of earnings was due to the 

Deepwater Horizon oil spill. 

The remaining portion of the Claimant’s submission alleged physical injury and damages as a 

result of the physical injury i.e. doctors visits, prescriptions, and loss of work. This portion of 

the claim is denied because physical injury is not compensable under the Oil Pollution Act. 

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

has an alleged loss in the amount claimed, and (2) that his 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.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 10/5/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

2 GCCF Online Filing Process Status Page. 

3 GCCF Denial Letter dated 20 June 2011.

4 GCCF Full Review Final payment Claim Form.