APPEAL PANEL DECISION FORM

Transcription

1 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Individual Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $(10.30) BP s Final Proposal Claimant s Final Proposal Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset 1.50 $1,200 $3, $1,200 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): Claimant, a Zone A resident of Panama City, Florida, filed an IEL claim for her lost wages from her claiming job with. The Settlement Program determined her to be a Category I Claimant and that the most advantageous Compensation Period for her was July 19, 2010-October 24, 2010 with a Benchmark Period of the same dates in Her Benchmark Period earnings were $1, and her Expected Earnings were $1, Her actual earnings during the Compensation Period were $1, which exceeded her Expected Earnings and, therefore, resulted in no IEL award. Claimant appeals.

2 Claimant appears pro se and it is difficult to determine precisely what she contends the error was by the Settlement Agreement. It appears that she claims that the Program should have used 2011 as her Benchmark Period instead of As BP correctly notes, only Category III claimants can use 2011 earnings as a Benchmark Period when such a claimant has documented earnings in 2011 but no coparable Benchmark Period Earnings. Claimant does not fit this category nor does she qualify as a Category III Claimant under any Settlement Agreement definition. After a de novo review of the record, the panel finds that Claimant s award was calculated correctly. The appeal is denied.

3 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Business Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $218, BP s Final Proposal Claimant s Final Proposal Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset 1.50 $172,900 $218, $172,900 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): BP appeals the BEL award to claimant,a condo design services provider in Orange Beach, Alabama.BP asserts the Settlement Program(SP) wrongfully designated claimant a tourism business;and incorrectly placed it in economic zone A.First,BP argues the SP improperly assigned claimant NAICS code (All Other General Merchandise Stores) because it is not a general merchandise vendor or retail store operator. BP contends claimant should be assigned NAICS code (Furniture Stores) or (Interior Design Services),neither of which is defined as a Tourism business under Exhibit 2 of the Settlement Agreement.Hence,a RTP of 2.5 would not be justified. Secondly,BP argues that claimant's

4 business location is actually in zone B and warrants a RTP of 2.0 and not 2.5.Claimant responds that the SP correctly determined that,given the nature of claimant's business and the services it provides,claimant fits the code description of Claimant also argues it operated from a zone A address for part of 2010 and that policy 331 permits claimant to claim zone A for claim purposes. A review of the record discloses that the SP determined the claim was not sufficiently matched and applied the AVM methodology. No revenues or expenses were impermissibly adjusted or reallocated.this panelist concludes there is no basis to disturb the NAICS code assigned by the SP and the tourism designation that ensued. The description of code provides in part: "These establishments retail a general line of new merchandise,such as *** housewares or home furnishings,and other lines in limited amounts,with none of the lines predominating." Thus,this panelist is satisfied this designation was reasonable and proper.finally,this panelist also concludes that claimant operated its business from zone A in 2010 in conformity with policy 331 and the Settlement Agreement. In sum,since claimant was a tourism business and was located in and operated from zone A, there are two separate reasons justifying a RTP of 2.5. Accordingly,there is no error,the award of the Claims Administrator is affirmed and the appeal of BP is denied.

5 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Business Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $0 BP s Final Proposal Claimant s Final Proposal Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset.25 $0 $1,786, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): BP appeals a $1.78 million Business Economic Loss award to an automotive parts manufacturer located in Huntsville, Alabama (Zone D), raising two issues:. The first is BP s contention that the Claims Administrator (CA) erred in classifying Claimant s Tool Room Costs and Other Factory Expenses as fixed, as opposed to variable, because those accounts fluctuate throughout the year. It complains that the CA classified them as fixed overhead costs without inquiring into the actual nature of them. In a short response, Claimant states the CA made several inquiries into specific line items on its P&L statement and, with regard to the two cost

6 items at issue, the CA applied the discretion given it and properly determined that they were part of its overhead and thus fixed. The record reflects that Tool Room Costs and Other Factory Expenses are not significant. As BP notes, in 2010, the Tool Room Costs vary from a low of $10,627 in October to a high of $43,947 in May. Similarly, setting aside a negative cost entry of $66,725 for December, the Other Factory Expenses account varies in 2010 from a low of $8,891 in September to a high of $15,098 in August. BP claims that miscalculation of those accounts as fixed overhead substantially inflated the award but fails to explain by how much; instead, it requests the claim to be remanded for an assessment of Claimant s attestation and an appropriate treatment of the variable expenses, or, alternatively, submits a zero dollar Final Proposal. This Panel unanimously concludes that such differentiation in light of the baseball appeal process is not persuasive; and that neither remand nor 0 can control. Issue number two raises an accounting issue: According to the Calculation Notes, a bad debt recovery received by the Claimant at one point in time was moved to another point in time when the bad debt was initially assessed. By Summary of Review the Panelists inquired if the CA moved the bad debt recovery line item to another period. In response the CA stated: Regarding the bad debt recovery, Program Accountants do not view the recovery of bad debt as operating revenue for an accrual basis Claimant, as this revenue has previously been recorded at the time it was deemed earned. Rather, it is viewed as a reduction or reversal of the bad debt expense that wrote off the receivable. Therefore, the adjustment made by Program Accountants was to reclassify bad debt recovery out of revenue and into expenses, not to reallocate revenue across or to another period. The CA s response is persuasive and convinces the Panel that it used reasonable discretion to make the appropriate accounting adjustment. In conclusion the Panel unanimously concludes that there was no error by the CA, that the Claimants Proposal is the more accurate choice, that remand is not appropriate, and that the appeal of BP is due to be denied.

7 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Business Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $46,892 BP s Final Proposal Claimant s Final Proposal Remand to Claims Administrator Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset 2.50 $97,800 $129, $97,800 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): In light of the Summary of Review regarding restatement of revenues, this matter is remanded for re-evaluation in accordance with the Court's instructions regarding Policy 495.

8 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Last/Name of Business First Middle Claimant Name Claimant ID Claim Type Law Firm Business Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $769, BP s Final Proposal Claimant s Final Proposal Remand to Claims Administrator Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset.25 $0 $2,179, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): The Construction Methodology was applied to this Claim. Per the District Court's instructions, this matter is remanded for re-evaluation in accordance with the Court's Orders.

9 With respect to the other issues raised on appeal by both BP and the Claimant, this Panel finds as follows: 1. Attestation -- This Panel rejects BP's position for the reasons set forth by all Panels that have addressed this issue. 2. "Intercompany subcontracts" -- On remand, the Program shall revisit the exclusion of these expenses and well as the exclusion of revenue associated with these expenses. 3. "Material paid direct" -- On remand, the Program shall revisit the treatment of this expense.

10 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Business Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $0 BP s Final Proposal Claimant s Final Proposal Remand to Claims Administrator Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset.25 $0 $222, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): On appeal, both parties agree that a remand is appropriate for the purpose of determining whether or not Claimant maintained an out-of-zone Facility, and if so, to exclude the revenues and expenses from that Facility from the calculations. Further on remand, the Program will comply with the District Court's recent Orders regarding Policy 495.

11 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Last/Name of Business First Middle Claimant Name Claimant ID Claim Type Law Firm Business Economic Loss II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $173, BP s Final Proposal Claimant s Final Proposal Remand to Claims Administrator Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset.25 $0 $231, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): See attached opinion uploaded into the portal.

12 DWH: : Written Reasons and Opinion: BP appeals this Business Economic Loss award to a real estate listing service in Birmingham, Alabama (Zone D), arguing that the Claims Administrator erred in his treatment of Claimant s revenues by not evaluating a sharp decrease in its fourth quarter 2010 revenues. It notes that the Administrator recognized that Claimant used cash basis accounting and recorded revenue in lump sums that was actually earned over a longer period of time and that he attempted to address this problem by making an adjustment to Claimant s broker, agent and appraiser fees by assuming they were earned on a quarterly basis and allocating them accordingly. Nonetheless, it asserts, Claimant s profits and losses show an unusually significant drop in the fourth quarter and since the fees in question are typically annual subscriptions, they should be reallocated on a straight line monthly basis over a twelve month period. Arguing in support of the Administrator s determination, Claimant responds that any reallocation of revenue must be made in keeping with the requirements of CAO Policy 495 and that, in this case, the claims analyst s notes indicate a thorough investigation and understanding of Claimant s revenue pattern and use of professional judgment to determine how its revenues needed to be reallocated. Claimant s position, of course, was staked out within a very few weeks of the Fifth Circuit s Policy 495 opinion which rejected reallocation or smoothing of Claimant revenues in the analysis of Business Economic Loss claims. The record clearly demonstrates that such reallocation was made prior to application of Policy 495. For that reason, this claim must be, and it is hereby, remanded to the Claims Administrator with instructions to once again utilize the Annual Variable Margin Methodology but this time refrain from adjusting or smoothing Claimant s revenues. Decision: July 31, 2017

13 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Last/Name of Business First Middle Claimant Name Claimant ID Claim Type Law Firm Denial Upheld Business Economic Loss II. DECISION Denial Overturned Remand to Claims Administrator III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Claimant appeals the denial of its BEL claim which the Settlement Program determined failed to pass causation. Claimant s financial statements triggered matching criteria and the Program applied the Construction Methodology. The use of an ISM rather than the AVMM requires a remand pursuant to the Fifth Circuit s Policy 495 Opinion and the District Court s Interim Order that followed. Despite the necessity of remand due to the ISM, Claimant raised two issues that the panel has considered in its de novo review. The first involves the location of the Claimant s business. The Settlement Program utilized in Panama City Beach (Zone C) as the Claimant s address. On appeal, Claimant maintains that this is error as it is the owner s home address and located in subdivision that has restrictive covenants that regulate the types of vehicles allowed. Claimant argues that construction cranes and other equipment would not be permitted in and suggests that the office is actually located in Zone A at, also in Panama City Beach. Review of the record reveals that all of Claimant s tax returns, the GCCF payment form, and Claimant s own claim form list the address as Claimant s corporate filings initially listed the same address then changed to the address sometime in The panel finds compelling evidence that the Program properly utilized the

14 address as Claimant s location. Claimant also argues that the Program used the wrong P&L statements for Claimant s wife prepared one set and its accountant later prepared a different set. Both were submitted and the Program used the version that reconciled to Claimant s tax returns. The panel finds this was the appropriate used of the 2011 P&Ls. But for the use of the ISM, the panel would have upheld the denial. Accordingly, the claim is remanded to the Program for recalculation under the AVMM only.

15 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Business Economic Loss II. DECISION Denial Overturned Remand to Claims Administrator III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Error in document review. See attached opinion uploaded into the portal.

16 DWH: : Written Reasons and Opinion: This Claimant, a sawmill located in Eupora, Mississippi (Zone D) filed a Business Economic Loss claim which was denied by the Claims Administrator for failure to satisfy the Settlement Agreement Exhibit 4B causation requirements. Analysis of its financial data in keeping with the requirements of CAO Policy 495 triggered matching criteria which the Claims Administrator resolved utilizing the Construction Methodology. Claimant sought Re-Review and, thereafter, Reconsideration contending that methodology should not have been utilized. Those requests likewise were denied. Claimant appealed, arguing that application of Policy 495, including specifically the Construction Methodology, violated the terms of the Settlement Agreement, previous holdings of the Fifth Circuit Court of Appeals and, further, that a challenge to its validity was pending before that court. Accordingly, it asked that its appeal be suspended or stayed pending the outcome of that decision. BP, in a reply dated seven days prior to that anticipated decision, pointed out that Claimant s NAICS Code was assigned to the list of industries to be reviewed pursuant to the Construction Methodology and that the Claims Administrator committed no error in analyzing Claimant s data in keeping therewith. Claimant s reply memorandum was filed shortly after the Court s May 22, 2017 opinion and invoking it, requests remand to the Claims Administrator for further processing pursuant to the Annual Variable Margin Methodology. Analysis of the record verifies utilization of that now invalidated methodology with the result that Claimant failed causation. For that reason, this Claimant appeal is sustained and the claim is therefore remanded to the Claims Administrator for further processing in keeping with this opinion. Decision: July 31, 2017

17 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Business Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Claimant operated as a saleswoman in Key West, Florida. The Claims Program denied Claimant s claim for lost business earnings stating she was not doing business or operating in the Gulf Coast Areas or Specified Gulf Waters at the time of the Oil Spill, April 20, Claimant appeals contending that she was operating her sales business before, during and after the oil spill. The only argument Claimant makes, other than boilerplate arguments, is that certain evidence submitted to the Claims Program, namely, Claimant s 2010 Tax Return showing income of $1,025 and Claimant s 2010 Pay Period Earnings, showing income paid on 3/31/2010 through 6/15/2010, sufficiently show that Claimant was operating prior to the spill, during the spill and after the spill. BP responds by pointing out that Claimant filed this claim as a real estate agent. However, Claimant describes how she stopped selling real estate in 2009, well before the Spill, and acknowledges its lack of income after the spill. To be a member of the Class, Claimant must show it is a service business[] with one or more fulltime employees (including owner-operators) who performed their full-time services while physically present in the Gulf Coast Areas or Specified Gulf Waters at any time from April 20, 2010 to April 16, According to Claimant, it was operating prior to and during the spill and the lack of income after the spill was a result of the spill. As to the two documents Claimant contends are evidence of its operations before and after the spill, this revenue is derived from the sales of tour boat trips, and not from real estate sales. Notably, the 2011 tax return does not contain a Schedule C, meaning Claimant had zero real estate revenues during this period. Because Claimant stopped selling real estate after 2009, the Settlement Program appropriately determined that it was not doing business or operating in the Gulf Coast Areas or Specified Gulf Waters at the time of the Oil Spill, April 20, 2010, and was therefore ineligible for compensation.

18 Accordingly, Claimant s appeal is denied.

19 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Individual Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Claimant appeals the denial of her IEL claim which was based upon a finding that she was an owner/officer of a BEL claimant that was paid and whose wages were treated as a fixed expense in the BEL claim. The record reveals that Claimant is an owner (50% shareholder) of a business which made a BEL claim and received a substantial compensation award. The Settlement Program treated Claimant s wages as a fixed expense in the business s BEL claim and Claimant now seeks her W-2 wages in an IEL claim, arguing that... this settlement program cannot and has not cited any specific language in the settlement agreement that excludes owner/officers from filing an IEL claim if their business already filed a BEL claim. Claimant s entire argument in this appeal incorporates the briefings by the PSC in the appeal pending before the Fifth Circuit on this same issue. While BP notes that the District Court has previously decided adversely to Claimant s position, the issue is now foreclosed in light of the Fifth Circuit s decision in Case No on July 19, Accordingly, this appeal is denied.

20 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Individual Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Claimant appeals the denial of his IEL claim which was based upon a finding that he was an owner/officer of a BEL claimant that was paid and whose wages were treated as a fixed expense in the BEL claim. The record reveals that Claimant is an owner of a business which made a BEL claim and received a substantial compensation award. The Settlement Program treated Claimant s wages as a fixed expense in the business s BEL claim and Claimant now seeks his W-2 wages in an IEL claim, arguing that... this settlement program cannot and has not cited any specific language in the settlement agreement that excludes owner/officers from filing an IEL claim if their business already filed a BEL claim. Claimant s entire argument in this appeal incorporates the briefings by the PSC in the appeal pending before the Fifth Circuit on this same issue. While BP notes that the District Court has previously decided adversely to Claimant s position, the issue is now foreclosed in light of the Fifth Circuit s decision in Case No on July 19, Accordingly, this appeal is denied.

21 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Subsistence Denial Upheld II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Once again a Subsistence claimant appeals the denial of his claim for failure to produce valid licensure and submits vastly different catch totals. In a now familiar pattern, the record demonstrates that Claimant, a 72 year old man from Houma, Louisiana, filed a Subsistence claim on the final day of eligibility, claiming to have personally harvested and consumed 8,350 lbs. of subsistence, including 1,200 lbs. of crab using rods, reels, and nets. Despite the clear requirement of the Settlement Agreement to produce licensure and requests by the Program for his licenses, Claimant to this day has yet to respond with a license, forcing the Program to verify it independently. Nearly two years transpired and Claimant submitted a Subsistence Interview Form, dramatically reducing his catch by over 54% to 3,800 lbs. (which still amounts to over 10 lbs. per day). The discrepancy, Claimant states, was due to a calculation error. The Settlement Program denied the claim because Claimant still did not describe the equipment used to harvest crab. Claimant then filed this appeal, ignoring the requirement of the Settlement Agreement to file an opening memorandum and offering, for the first time on appeal, the gear used to harvest crab. Needless to say, BP opposes the appeal, noting the above and specifically singling out the inflated and unrealistic catch totals. No surprisingly, Claimant offered no rebuttal. This panel has conducted a de novo review and finds that the claim denial was completely warranted. The appeal is denied.

22 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Wetlands Real Property II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $ BP s Final Proposal Claimant s Final Proposal Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset 2.50 $0 $4, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): Claimant,a property owner in Placquemines Parish,Louisiana,appeals the correctness of its Wetlands Real Property Claim. Claimant asserts the Settlement Program(SP) wrongfully identified the subject parcel as being in Compensation Category B; and the SP incorrectly calculated the subject parcel's SCAT Zone Length and Non-Oiled Primary Area Depth. Claimant argues that the subject parcel is in fact in Compensation Category A because the ERMA map shows it is oiled and there was a preliminary determination by the SP the parcel was oiled.bp responds that claimant has presented legally insufficient proof that the subject parcel was oiled such as by SCAT or under the NRD auspices.bp also argues reliance on the ERMA

23 map is misplaced since it is for informational purposes only.bp further argues the SP mapping experts confirmed the subject parcel was not oiled. A review of the record discloses on July 18,2016, an eligibility notice issued with a determination by the SP the claimed property was non-oiled and placed in Category B for compensation purposes.thereafter,on August 26,2016,claimant was informed by a SP representative that he agreed the claimed property "should be in Compensation Category A." Claimant sought Post Re-Review relief on this basis, including the ERMA map and the SCAT line relative to the subject parcel's location. The SP then submitted the claim for further review by the SP mapping experts.it was determined that the parcel remained eligible for compensation but there was no change found warranted to place the subject parcel in Category A.This new notice issued on January 19,2017. On January 30,2017, claimant received in a supplemental explanation from the SP the basis for the determination made by the mapping experts.see DOC ID.Claimant next sought Post- Reconsideration relief which resulted in no change to the previous decision because claimant presented no persuasive proof of the parcel "containing the presence of oil by SCAT or relevant NRD Assessments." This decision was entered on April 4,2017. While claimant challenges the sufficiency and correctness of these determinations, suggesting they are arbitrary and without factual support, this panelist disagrees.the record reflects a careful re-review by the mapping experts of the location of the subject parcel with the input provided by claimant along with other public record information. The dated January 30,2017,explains the means by which the SP mapping experts arrived at the decisions reached.even though the ERMA map may show a contrary result, it is not binding authority and is "for informational purposes only." This much is certain under court and panel decisions.this panelist thus concludes there is no basis to overturn the decision of the SP in this regard.claimant has failed to present sufficient,persuasive argument that the subject parcel was oiled.finally,since the SP correctly determined the subject parcel was not oiled and in Category B,it is unnecessary to consider the remaining issue relative to the SCAT Zone Length and Non-Oiled Primary Area Depth since the parcel is accorded the presumptive value of $4,500 for compensation calculation purposes.accordingly,the decision of the Claims Administrator is affirmed and the appeal of claimant is denied.

24 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Subsistence II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $2, BP s Final Proposal Claimant s Final Proposal Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset 2.25 $0 $10, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): See reasons uploaded

25 CLAIMANT: CLAIM ID: The Claims Administrator (CA) awarded this Mississippi Subsistence Claimant the sum of $2, (pre RTP). Claimant filed an appeal but filed no memoranda supporting or explaining the basis of the appeal. The Notice of Appeal indicates the CA erred in assigning a 50-day Loss Period to the claim. Claimant asserts the Loss Period should be 252 days. The CA evaluates claimed Loss Periods by reference to closure maps and other relevant reports. Settlement Agreement Exhibit 9 at C.3.a and Policy 316v. 4. Claimant here has not provided objective evidence of actual impairment to substantiate a loss period longer than 50 days. Accordingly, Claimant s appeal is denied.

26 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Business Economic Loss II. DECISION Denial Overturned Remand to Claims Administrator III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Uploaded

27 CLAIM ID NO. Claimant,, is a dirt and bulldozing contractor located in Oakdale, Louisiana. The Settlement Program denied this claim because Claimant does not pass causation under the Decline-Only Revenue Pattern Test. Claimant appeals, asserting the Settlement Program (1) Failed to properly classify expenses in the Reimbursement account as COGS/Variable expense in accordance with Claimant s 2010 Federal Tax Return; (2) Failed to exclude from revenue loans from one of Claimant s owners, and (3) Failed to exclude from revenue a returned check that should have been treated as a reimbursed or refunded expense. With respect to the first issue, BP acknowledged that although Claimant s argument that the Reimbursement account should be classified as a variable expense in its entirety is in opposition with the express language of the Settlement Agreement, this item should be looked into further upon remand. Similarly, the loan from an owner and the returned retainer check should be reevaluated for classification purposes, as this case subject to remand in any event for reasons set forth below. The overriding issue concerns the fact the Settlement Program denied Claimant s BEL claim after application of Policy 495 s Construction Methodology. Accordingly, the case is directly impacted by the Fifth Circuit Court of Appeals decision dated May 22, 2017 (the 495 Opinion ), which stated, in part, Because the AVMM is consistent with the text of the Settlement Agreement, but the four ISMs are not, we AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for proceedings consistent with this opinion. This was followed by the May 25, 2017 Order of the District Court that the consideration of any BEL claims currently on appeal before the Appeals Panel involving ISMs shall be remanded to the Settlement Program for further consideration and processing in accordance with the 495 Opinion of the Fifth Circuit Court of Appeals. Here, the Settlement Program applied the Construction Methodology, one of the prohibited ISMs. Therefore, this matter is hereby remanded for further consideration by the Settlement Program in light of the 495 Opinion and the May 25, 2017 Order of the District Court, as well as for reconsideration of the classification of the specific revenue items discussed above.

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29 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Business Economic Loss II. DECISION Denial Overturned Remand to Claims Administrator III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Uploaded

30 CLAIM ID NO. Claimant, a minor league hockey ticket retailer, appeals the denial of it BEL Claim. The Settlement Program concluded that Claimant failed to meet the requirements of Exhibit 4B of the Settlement Agreement as its revenue pattern was insufficient under any of the tests provided for a Zone D business. Claimant argues the Settlement Program erred in the restatement of its trade income. Claimant maintains the original revenue recognition is the correct recognition, as it reflects the usage of the tickets and correlates with parking, concessions, and merchandise sales. Claimant objects to the reallocation of revenue that caused it to fail causation. In its brief, BP acknowledges the Settlement Program reallocated Claimant s trade income across the fiscal year, but defends the adjustment as appropriate under the Settlement Agreement and Policy 495. However, following the briefing on this appeal, the District Court entered its Order of May 25, 2017, which holds, in pertinent part, that, IT IS FURTHER ORDERED that the consideration of any BEL claims currently on appeal before the Appeals Panel involving ISMs or otherwise involving the restatement of revenues (except for the purpose of correcting errors) shall be remanded to the Settlement Program for further consideration and processing in accordance with the 495 Opinion. The restatement of revenues in this case require remand in light of the May 25, 2017 order of the District Court. Accordingly, Claimant s appeal is granted, and this matter is remanded for recalculation in accordance with the 495 Opinion.

31 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Individual Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Uploaded

32 CLAIM ID NO. Claimant appeals the denial of this IEL claim, asserting the Settlement Program cannot, and has not, cited any specific language in the Settlement Agreement that excludes owner/officers from filing an IEL claim if their business already filed a BEL claim. Claimant is an % owner of BP argues Claimant s alleged losses therefore relate to business income required to be reported on Internal Revenue Service Form 1040 Schedules C, E, or F, citing and Ex. 8A of the Settlement Agreement. Accordingly, maintains BP, as the loss of income that Claimant is alleging flows directly from his business, the claim must be evaluated under the BEL Framework, not the IEL Framework. BP is correct. Claimant was not entitled to recover under the IEL framework because he owned the business from which he was claiming lost wages and he had already recovered for his losses through that business BEL award. Claimant argues that there is no bar against double recovery prescribed in the Settlement Agreement. However, the District Court has already rejected Claimant s argument and has held that the owner of a business that recovers under the BEL framework may not also recover under the IEL framework. See, 4/25/2016 District Court Order & Reasons. Claimant s business ) filed a claim with the Settlement Program in 2013 and was awarded $2,064,149.47, post-rtp and accounting support. A review of the record in that appeal demonstrates the Settlement Program treated Claimant s wages, including all W-2 wages, as a fixed expense. The central issue here was recently addressed by the Fifth Circuit Court of Appeals, in Case No , filed July 19, 2017, where the court held, Claimants ask that the CSSP compensate not only their business through a BEL claim, but also the Claimant s themselves as employees through an IEL claim. The Settlement Agreement, when read as a whole, does not allow this double compensation. The BEL framework, by compensating the business for the owners lost wages through the fixed-cost designation of their wages, precludes compensating those same owners for the same wages through an IEL claim. As an alternative contention, Claimants assert that the CSSP should devise a formula for determining the extent to which a business owner s IEL claim overlaps with the

33 business s BEL claim compensation and then simply offset the IEL claim by the amount already awarded through the BEL claim. The Agreement does not provide for such a calculation or set off, and we are not empowered to judicially amend that agreement. Claimants final argument, that our interpretation of the Settlement Agreement violates their due process rights, is waived because they did not raise it on their previous appeal to this court. We nevertheless consider the merits of the argument and conclude that there has been no violation of the due process clause. For the foregoing reasons, we AFFIRM the judgment of the district court. Accordingly, Claimant s appeal is denied, and the Denial entered herein by the Claims Administrator is hereby upheld.

34 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Individual Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Claimant appeals the denial of his IEL claim which was based upon a finding that he was an owner/officer of a BEL claimant that was paid and whose wages were treated as a fixed expense in the BEL claim. The record reveals that Claimant is 100% shareholder of a business which made a BEL claim and received a substantial compensation award. The Settlement Program treated Claimant s wages as a fixed expense in the business s BEL claim and Claimant now seeks his W-2 wages in an IEL claim, arguing that the Settlement Agreement is void of any language that states an Owner, Part Owner, or Officer of a business is excluded from making an IEL claim if he or she otherwise satisfied the Class Definition and qualifications. While BP notes that the District Court has previously decided adversely to Claimant s position, the issue is now foreclosed in light of the Fifth Circuit s decision in Case No on July 19, Accordingly, this appeal is denied.

35 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Wetlands Real Property II. DECISION Select the Compensation Amount set forth in either BP s Final Proposal or the Claimant s Final Proposal as the final outcome on the claim and check the appropriate box to signify your decision. Compensation Amount $ BP s Final Proposal Claimant s Final Proposal Risk Transfer Premium Prior Payment Offset Compensation Amount Risk Transfer Premium Prior Payment Offset 2.50 $0 $4, $0 III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Error in documentation review. Error in calculation. Error in RTP multiplier. Error in Prior Spill-Related Payment Amount. No error. Comment (optional): Claimant,a property owner in Plaquemines Parish,Louisiana,appeals the correctness of her Wetlands Real Property Claim. Claimant asserts the Settlement Program(SP) wrongfully identified the subject parcel as being in Compensation Category B; and the SP incorrectly calculated the subject parcel's SCAT Zone Length and Non-Oiled Primary Area Depth. Claimant argues that the subject parcel is in fact in Compensation Category A because the ERMA map shows it is oiled and there was a determination by a SP representative that the parcel was oiled. A review of the record discloses that claimant is a coowner of the same parcel the subject of a related appeal in claim number. The issues raised herein mirror those

36 raised and decided in that appeal by the undersigned panelist on August 1,2017.The decision entered therein has equal application to the resolution of this claim and it is adopted in full as the decision in this appeal.accordingly,the decision of the Claims Administrator is affirmed and the appeal of claimant is denied.

37 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Business Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): Claimant provides publication services in Larose, Louisiana. The Settlement Program denied this claim because Claimant fails the Customer Mix test of the Modified V-Shaped Revenue Pattern test. Claimant initially appealed this claim on May 4, 2017 on the basis that the Settlement Program incorrectly adjusted Claimant s financials under Policy 495. Claimant was mistaken because the record demonstrates that the Settlement Program did not make any adjustments. Claimant did not file a reply brief. On July 18, 2017, Claimant submitted a letter stating, [I]t is our understanding that this claim may have been denied due to the [C]laimant not providing exact dates of client sales in the period. Claimant also provided detailed sales records, including dates of sales for the period. This letter mentioned the Customer Mix test for the first time on appeal and did not address Policy 495. This panelist asked BP to respond to Claimant s latest submission, and BP did respond. BP responded that Claimant s new Customer Mix data should not be considered. Under the Rules Governing the Appeals Process, [t]he issues on appeal shall be limited to those originally raised by the appellant claimant or BP in the Request for Appeal Form/Notice of Appeal. Accordingly, [t]he Appeal Panelist shall not consider issues raised by either the appellant or the appellee after the Notice of Appeal and/or original Proposal. Claimant never raised the issue of whether it passes the Customer Mix test in its Notice of Appeal or Opening Memorandum. Thus, says BP, the Appeal Panel should not consider Claimant s new Customer Mix data because Claimant is not entitled to another bite at the apple. However, BP goes on to say that even if the Appeal Panel were to consider the new Customer Mix data, Claimant would still fails the Customer Mix test. Claimant erroneously believes that it did not satisfy the Customer Mix test because it failed to include the exact dates of client sales. However, the exact dates of customer sales within a defined three-month period

38 is irrelevant to the Customer Mix calculation. The Customer Mix test is based on total revenue generated by customers... over the same period of... three consecutive months. Whether a customer transaction occurred in a particular month within that defined period has no bearing on the calculation. Thus, the Settlement Program s Customer Mix calculation would not change based on Claimant s new Customer Mix data. Based on the foregoing, the Settlement Program s denial of this claim is upheld.

39 APPEAL PANEL DECISION FORM I. CLAIMANT AND CLAIM INFORMATION Claimant Name Last/Name of Business First Middle Claimant ID Claim Type Law Firm Denial Upheld Start-Up Business Economic Loss II. DECISION Denial Overturned III. PRIMARY BASIS FOR PANELIST DECISION Please select the primary basis for your decision. You may also write a comment describing the basis for your decision. Claim should have been excluded. Claim should have been denied. Claim should not have been excluded. Claim should not have been denied. No error. Comment (optional): See decision