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RESOLUTION NO. R-1314-47: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN OKLAHOMA, AUTHORIZING COMPROMISE SETTLEMENT OF A CLAIM FILED BY ROBERT PACK UNDER THE PROVISIONS OF THE WORKERS' COMPENSATION STATUTES OF THE STATE OF OKLAHOMA IN THE CASE OF ROBERT PACK V. THE CITY OF NORMAN, WORKERS' COMPENSATION CASE NO. WCC-2013-01562X; DIRECTING THE LEGAL DEPARTMENT TO THEN FILE SUCH SETTLEMENT AND ALL ATTENDANT COSTS IN THE WORKERS' COMPENSATION COURT, OKLAHOMA CITY, OKLAHOMA; AND AUTHORIZING AND DIRECTING THE FINANCE DIRECTOR TO SUBSEQUENTLY PURCHASE SUCH WORKERS' COMPENSATION COURT JUDGMENTS FROM THE RISK MANAGEMENT INSURANCE FUND.
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BACKGROUND: Robert Pack is a Heavy Equipment Operator in the Street Maintenance Division of Public Works. He filed Workers’ Compensation Claim WCC 2013-01562X on February 8, 2013 alleging a single incident on October 30, 2012 from a spider bite. The case proceeded through the normal litigation process and, through settlement negotiations, has agreed to settle his claim for the amount of $16,343.80. The settlement offer is being presented to City Council at this time. It is recommended that this settlement be accepted.
DISCUSSION:
Nature of Claim. Mr. Pack is Heavy Equipment Operator in the Street Maintenance Division of Public Works. He was hired on February 5, 2002 as a Maintenance Worker I in Streets and was promoted on November 15, 2002 to Heavy Equipment Operator. He was bitten by what is believed to be a spider in his work glove. The injury started as a whelp and progressed to an infected area on the top of his right hand which resulted in surgery and hospital confinement.
Issues for Trial. Should this case proceed to trial, there is no question that Mr. Pack’s injury arose out of and in the course of his employment with the City. Therefore, the issue before the Workers’ Compensation Court would be the nature and extent of Mr. Pack’s injury or the Permanent Partial Disability (PPD) to Mr. Pack’s right hand due to this incident. Permanent partial disability is a factual determination made by the Workers' Compensation Court Trial Judge based on doctors' opinions and medical records regarding the extent of permanent partial impairment.
Mr. Pack was initially treated at Norman Regional Hospital’s Emergency Department on October 31, 2012 where he was given a prescription of Bactrim DS and instructed in home care. On November 3, 2012, Mr. Pack returned to the ED with significant swelling and an abscess which was drained, packed and then bandaged. He was to return in 48 hours for re-evaluation. He returned to the ED on November 4, 2012 with redness tracking up his arm. He was admitted to the hospital and surgery was performed on his hand on November 4, 2012 by Dr. Brad Vogel. Mr. Pack’s hand was incised and the wound showed multiple areas both dorsally and ulnarly that were involved. Several cultures were taken, and the infected area cleaned. After dressing was applied, he was placed in a padded short arm splint.
Mr. Pack’s rehabilitation consisted of whirlpool treatments for approximately three weeks. Dr. Vogel released him to full work duty on November 30, 2012. After a final follow-up with Dr. Vogel on December 14, 2012, it was determined Mr. Pack had reached maximum medical improvement and was discharged.
On April 10, 2013, Mr. Pack was evaluated by Dr. Lonnie Litchfield, who opined 36% PPD to the right hand for his injuries. This rating equates to $25,581.60 PPD. The City had Mr. Pack evaluated by Dr. LeRoy Young who opined 0% PPD to the left hand but he felt that Mr. Pack had some disfigurement to his hand. The maximum exposure to the City is 36% PPD or $25,581.60. In addition, the Workers’ Compensation Court could also award disfigurement which is an issue that is determined by the Court and can be awarded up to but not more than $50,000.
Settlement. On August 12, 2013, the City entered into settlement negotiations with Mr. Pack and his attorney. City Staff has negotiated a proposed settlement on a Compromise Settlement basis for a lump sum payment of $16,343.80 which represents 23% PPD to the right hand. A Compromise Settlement is beneficial to the City in that it is a full, final and complete settlement of any and all claims in the Workers’ Compensation case. Moreover, the settlement offer is within the medical evidence.
Should this case proceed to trial, it is reasonably possible that the City could be ordered to pay more than the settlement offer due to the nature of Mr. Pack’s injury, hospitalization and surgery. However, although this was a serious injury, Mr. Pack responded well to treatment and was able to return to work within in a short length of time. It is felt that this settlement is fair and reasonable. This settlement is beneficial to Mr. Pack in that it provides certainty for an award. It is also beneficial to him because the entire settlement amount is being paid in a lump sum rather than at a weekly rate over a period of time.
If this settlement offer is approved, payment to Mr. Pack and his attorney would be paid at the PPD rate as set out above which is slightly over one-half the difference in the medical opinion rate and the settlement rate.
Furthermore, if the case was settled in this manner, the City would incur additional costs and fees of: Workers' Compensation Administration Fund Tax in the amount of $326.88; Special Occupational Health & Safety Fund Tax in the amount of $122.58; Workers Comp Court Filing Fee in the amount of $140.00; and Cleveland County Court Filing Fee in the amount of $125.70. These additional costs and fees total $715.15, which brings the total cost of this settlement to the City to $17,058.95.
RECOMMENDATION: For the reasons outlined above, it is believed this compromise settlement offer is fair, reasonable, and in the best interest of the City. Acceptance of the Compromise Settlement would require the payments as outlined above. If approved, the settlement amount would be paid to Mr. Pack and his attorney in a lump sum. The Compromise Settlement would be certified to the Cleveland County District Court to be placed on the property tax rolls for collection over the next three years in accordance with 85 O.S. § 313, 51 O.S. § 159, and 62 O.S. § 361, et seq. Certifying the order to the property tax rolls would, in effect, reimburse the City’s Workers’ Compensation Fund over the next three years.