CLAIM SUMMARY/DETERMINATION FORM

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 20 October 2011, Valentina Nishku (the Claimant) presented an Optional Oil Spill Liability Trust 

Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking $30,000.00 in loss of 

profits and impairment of earnings capacity that allegedly resulted from the Deepwater Horizon oil spill.

At the time of the Deepwater Horizon oil spill, the Claimant was unemployed and seeking employment in 

the Palm Harbor, Florida region.1

 The Claimant asserts that due to the Deepwater Horizon oil spill, she 

was unable to secure employment despite an active job search.2

 As a result of not being able to obtain 

work, the Claimant suffered reduced income in 2010.3

The Claimant did not provide an explanation regarding the calculation of her sum certain of $30,000.00.

APPLICABLE LAW

The Oil Pollution Act of 1990 (OPA) provides that each responsible party for a vessel or facility from 

which oil is discharged into or upon the navigable waters or adjoining shorelines or exclusive economic 

zone is liable for removal costs and damages. 33 U.S.C. § 2702(a). Damages include the loss of profits 

or impairment of earning capacity due to the injury, destruction or loss of real property, personal property, 

or natural resources, which shall be recoverable by any claimant. 33 U.S.C. §2702(b)(2)(E).

The OSLTF, which is administered by the NPFC, 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. With certain exceptions a claim must first be presented to the responsible party. 33 

U.S.C. § 2713(a). If the claim is either denied or not settled by any person by payment within 90 days 

after the date on which it was presented, the claimant may elect to commence an action in court or present 

the claim to the OSLTF. 33 U.S.C. § 2713(c).

Pursuant to the claims regulations, 33 C.F.R. § 136.233, a claimant must establish the following to prove 

loss of profits or impairment of earning capacity:

(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.

1 Optional OSLTF Claim Form received 20 October 2011.

2 Optional OSLTF Claim Form received 20 October 2011.

3 Optional OSLTF Claim Form received 20 October 2011.

Claim Number N10036-1515

Claimant Valentina Nishku 

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $30,000.00

 
(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.

(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 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 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 undertaken, 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

The Claimant’s Submission to the OSLTF

In support of her claim, the Claimant presented the following documentation to the NPFC:

- Optional OSLTF Claim Form received 20 October 2011;

- GCCF Denial Letter dated 30 September 2011;

- Document containing list of jobs the Claimant applied for;

- Agency for Workforce Innovation, Unemployment Compensation, Benefit Records for period 14 

February 2010-27 February 2010. 

Prior to presenting this Claim to the NPFC, the Claimant filed an Interim Payment Claim Quarter III 2011 

(ICQ32011) with the GCCF.4

 The Claimant was assigned Claimant ID # 3548663 and Claim ID # 

9500473. The ICQ32011 was denied on 30 September 2011.5

Based upon the evidence provided by the Claimant, it appears that the subject matter for the Claimant’s 

GCCF claim is the same as the subject matter of Claimant’s claim before the NPFC, i.e., that due to the 

Deepwater Horizon oil spill, the Claimant was unable to obtain employment. The NPFC deems the 

Claimant’s GCCF claim to be properly presented to the RP and properly presented to the NPFC. 

Accordingly, this Claim Summary Determination for NPFC Claim N10036-1515 considers and addresses 

the earnings claimed in the claim presented to the responsible party specifically; GCCF Claim # 9500473 

(ICQ32011). 

4 GCCF Claimant Status page. 5 GCCF Denial Letter dated 30 September 2011.

 
NPFC Determination

The claim is denied. 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 documentation presented by the Claimant.

The claim is denied because the Claimant failed to prove that the alleged loss in the amount of $30,000.00 

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.

The Claimant asserted that she has been unable to obtain employment due to the depressed economy 

caused by the Deepwater Horizon oil spill.6

 The Claimant, however, failed to articulate any specific 

injury caused by the Deepwater Horizon oil spill; rather, the Claimant stated that, “[f]inding a job in these 

conditions was much harder, I was unable to find work because oil spill [sic] significantly affected the 

economy.”7

 Although the Claimant asserted damage to the economy in general, she failed to allege, 

and/or provide evidence of, any particular loss or failed job opportunity that she personally experienced 

that was a result of the Deepwater Horizon oil spill. Accordingly, the Claimant provided nothing to 

indicate her alleged loss was due to the Deepwater Horizon oil spill as opposed to other factors, such as 

the previously struggling Florida economy.

This claim is denied because the Claimant failed to meet her burden to demonstrate (1) that there was an 

alleged loss in the amount claimed, 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. 

Claim Supervisor: NPFC Claims Adjudication Division

Date of Review: 11/3/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

6 Optional OSLTF Claim form received 20 October 2011.

7 Optional OSLTF Claim form received 20 October 2011.