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Judge reconsiders ruling as oil spill workers await fate

BP oil spill cleanup workers are upset over interpretation that blocks them from medical claims settlement payments

NEW ORLEANS -- Mark Mead and two buddies were fishing less than 20 miles away when the Deepwater Horizon oil rig burst into flames and lit up the night sky.

The trio rushed toward the floating inferno to help pull bodies out of the water. And as oil continued to gush out of BP's broken well over the next four months, Mead helped again as a part of BP's cleanup effort, picking up contaminated boom in the waters off Perdido Key at the Florida-Alabama line.

Despite his heroics, Mead now finds himself among an estimated 20,000 coastal residents and cleanup workers who are part of a medical damages settlement class, but would be blocked from settlement payments under a disputed reading of one phrase buried in an agreement more 1,000 pages long.

It's an issue vexing U.S. District Judge Carl Barbier, who initially backed BP's reading of the settlement, but now is reconsidering and realizing that the current interpretation might relegate most of the class members to just what the settlement was supposed to avoid — years of costly litigation.

BP medical settlement's new interpretation could cut out thousands

'High exposure,' little help

With such a monumental decision hanging in the balance, WWL-TV interviewed Mead and a panel of six Florida residents who worked shore-side cleanup for BP after the spill, to find out how the situation is affecting them.

For Mead, it's been traumatic. In 2010, he told CNN that he was suffering from serious anxiety from his experience in the chaos of the rig explosion. Since then, he's been prescribed a host of other medication to deal with conditions he says he got from exposure to the oil and Corexit, a chemical dispersant BP applied to the oil to break it down into tiny droplets.

During his cleanup work on June 21, 2010, Mead fell into the sludgy oil- and chemical-laced Gulf waters. He was rushed to a BP facility on shore, where reports indicated he had "high exposure" to oil on most of his body and suffered a burning sensation on his skin.

But the medical professional provided by BP wrote it off as minor and told him to "shower thoroughly and return to work." Mead said that about a year later, he started having monthly outbreaks of painful, swollen lesions all over his back, arms and legs.

He was diagnosed with chronic dermatitis, one of the conditions that would qualify for the maximum $60,700 payment for a chronic condition under the settlement. But the disputed interpretation of BP's medical claims settlement says Mead was diagnosed too late and must wait for his individual case to be litigated.

"BP said early on — the CEO — that they'd take care of us," Mead said. "And they haven't."

Mead is also one of 11,000 people who filed medical claims with Claims Administrator Matt Garretson but have not been paid. More than eight months after Garretson was allowed to start payments, only 80 have been processed, according to reports filed by his office.

Settlement terms disputed

Mead's lawyers and other plaintiffs' attorneys were shocked this summer when Garretson announced a policy stating that claimants had to be diagnosed in the proper manner before April 16, 2012 — the date of the settlement agreement — to qualify for settlement payments.

Garretson said the language of the agreement was clear and Barbier upheld that in July.

Arguments made in Barbier's courtroom last week suggest that ruling could force the vast majority of medical settlement class members into the kind of protracted litigation that kept victims of the Exxon-Valdez spill waiting for more than 20 years. That has the judge concerned and reconsidering his July order.

BP contends that the diagnosis deadline that appears in the settlement's definition for "later-manifested physical conditions" should also apply to conditions that claimants say showed up right away, such as eye damage, irritant-induced asthma and chronic dermatitis.

BP attorney Kevin Hodges told Barbier last week that anyone affected by the types of chronic conditions covered by the settlement surely would have seen a doctor before the April 16, 2012 deadline for diagnosis. But Barbier was skeptical, noting that most of the cleanup workers were likely uninsured and would not have an easy time paying for a doctor's visit.

Several cleanup workers said they had a hard enough time affording a regular doctor's visit, let alone the type of specific examinations that they later learned were required for a full diagnosis under the settlement.

"I hadn't worked since 2010, and that had a lot to do with going to see a good doctor, because they want cash money up front and I don't have no — I'm homeless, I don't have nowhere to stay and family has been helping me all of this time. It's just been bad," said Donald Dumas of Pensacola, Fla.

Heather Lindsay, a Milton, Fla.-based attorney representing hundreds of cleanup workers, bristled at BP's contention that the cut-off date was intended for chronic conditions from the start, to prevent claimants from getting fraudulent diagnoses after the terms of the settlement were made public.

"That's absurd because that assumes that medical doctors are not going to be ethical and they're going to provide whatever diagnosis we tell them," Lindsay said. "Doesn't everyone know how little doctors like lawyers?"

She said several factors made a diagnosis in the first two years difficult. In addition to the prohibitive cost for her clients, several of whom were homeless at the time of the spill, Lindsay said most thought they had something they were calling the "BP crud," some kind of contagious cough workers assumed was just "going around."

Also, many of them went to doctors right away but, like Dumas' doctors at an indigent clinic, they did not have the expertise to recognize the specific diagnoses later outlined in the settlement. Lindsay acknowledged that once the terms of the settlement became known in 2012, she and other lawyers made sure their clients got the types of medical tests necessary to get the proper diagnoses.

Workers share experience

Last week, WWL-TV interviewed a panel of six shore-based cleanup workers from Florida who were all diagnosed with chronic ocular damage after April 16, 2012, the disputed cut-off date in the settlement agreement.

They all said they were wholly unprepared for how to safely handle the oil and were assured by BP and its contractors that it had degraded to the point that it was no longer dangerous. They all said they attended a basic four-hour training session at the Pensacola Civic Center, but that it focused on hydration and other safety issues, not oil and chemical exposure.

A longer, more intense course was reserved for people working out on the water, they said.

"We were not supposed to be in what they called the 'Hot Zone,'" said Robert Trusler of Pensacola. "They would mark an arbitrary line on the beach. 'Oil's over here, it's not over here.' With our training we were not supposed to be in the 'Hot Zone.' But they did. After a couple days they said, 'Get in there. Get in.'"

All six said they handled the mushy oil mats and tar balls that came ashore, and that sea spray sent oily water onto unprotected parts of their bodies.

"We had (personal protective equipment), but it was inadequate," said Robert Lee, also of Pensacola. "The agitation from the surf created a spray. The spray got past your glasses, got in your nose, got in your throat. It was terrible."

And each said they went to see doctors, either while they were working or shortly after they were laid off in late 2010. Still, none of them got a diagnosis that qualified them for a chronic condition payment until after the 2012 deadline established in Garretson's policy statement and now being reconsidered by Barbier.

Administrator defends policy

"The gentleman who placed the deadline, he needs to come work the oil spill," Lee said. "I know it's too late now, but I think he needs that because he doesn't understand what we're going through."

Garretson contends that his policy is based on a plain reading of the settlement's clear language and that he did not "interpret" anything. He told WWL-TV that it was doing a "disservice to class members" by suggesting that he "has some discretion regarding the mandates in the Medical Settlement Agreement."

Christopher Causey, another Florida cleanup worker interviewed by the TV station, said he's tired of the excuses.

"There's a thousand of us out here suffering. Release our medical benefits, please," he said.

While the claims administrator for BP's separate economic damage settlement posts updated statistics online on a daily basis, Garretson provides reports to the court on a quarterly basis and declined WWL's request for a progress update, saying the station had to rely on the quarterly report he filed with the court a month ago. That report showed he had paid 79 claims through Aug. 8.

But a weekly update later provided to WWL-TV indicates that in the two months since then, Garretson's office has processed just one additional payment.

None of the 80 has been for chronic conditions, the update shows.

Asked about the slow pace, Garretson said: "We recognize that some people are frustrated, and we empathize with people who are awaiting payment for claims that meet the requirements of the Medical Settlement Agreement, but following the process contained in that agreement and approved by the court is the only way to have a claim approved, and the only way to ensure that the process is as fair as it can be to everyone."

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