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RESOLUTION R-1819-57: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN, OKLAHOMA, AUTHORIZING COMPROMISE SETTLEMENT OF THE CLAIM FILED BY LENNY BRIAN MULDER UNDER THE PROVISIONS OF THE WORKERS' COMPENSATION STATUTES OF THE STATE OF OKLAHOMA IN THE CASE OF LENNY BRIAN MULDER V. THE CITY OF NORMAN, WORKERS’ COMPENSATION CLAIM NO. 2016-04403 Y; 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 JUDGMENT FROM THE RISK MANAGEMENT INSURANCE FUND.
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BACKGROUND: Lenny Brian Mulder is a former fire captain for the Norman Fire Department who filed Workers’ Compensation Claim No. 2016-04403 Y on July 8, 2016 alleging cumulative injury to both ears from repetitive exposure to loud noises with last date of exposure June 30, 2016. The case proceeded through the normal litigation process. Prior to a trial being scheduled to determine compensability, Mr. Mulder has agreed to settle this claim in the total amount of $14,659 (10% permanent partial disability plus $4,000, cost of hearing aids and batteries). The settlement offer is being presented to City Council for consideration. It is recommended that this settlement be accepted.
DISCUSSION: Mr. Mulder was a thirty-three (33) year employee of the City of Norman before retiring January 30, 2016. He was hired as a firefighter August 9, 1982 and promoted to fire driver engineer January 19, 1990 and fire captain September 28, 2001.
Due to noticeable hearing changes from the prior year, Mr. Mulder was seen by Dr. Joseph Leonard on February 27, 2002 and sent for an audiogram. He underwent a magnetic resonance imaging (MRI) of the head on March 1, 2002 and results were found to be within normal limits with no acoustic neuroma or associated abnormality. On June 26, 2015, Mr. Mulder underwent an additional audiogram and hearing aids were recommended. It is not uncommon for retiring firefighters to seek compensation under the workers’ compensation laws claiming cumulative injury to the ears resulting in hearing loss.
Issues for Trial. The City does not dispute that Mr. Mulder has suffered some hearing loss during his employment with the city. The primary issues to be tried before the Workers’ Compensation Court are the extent of Mr. Mulder’s injuries and whether the injuries to his ears are permanent in nature. 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.
Evaluations. Mr. Mulder was not sent for permanent partial impairment ratings. The parties are stipulating that the settlement offer of 10% plus hearing aids and batteries would be within a reasonable range of permanent partial disability.
Trial: The case proceeded through the normal litigation process and in lieu of a trial Mr. Mulder has agreed to settle his case as outlined below. If a trial was held in this case, the Judge could determine nature and extent of the injury of the ears and award permanent partial disability within a range of the doctors’ opinions.
Proposed Settlement. The proposed settlement to close this case on a “Compromise Settlement” basis is for a lump sum payment of $14,659 (less attorney fee) representing 10% ($10,659) permanent partial disability to two ears plus $4,000 cost of hearing aids and batteries.
It is felt that this settlement closing of this case is fair and reasonable. A Compromise Settlement is beneficial to the City in that it is a full, final and complete settlement of any and all claims and closes out any continued medical treatment in these Workers’ Compensation cases. 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 Mr. Mulder’s length of service. This settlement is beneficial to Mr. Mulder in that it provides certainty for an award. It is also beneficial to Mr. Mulder because the entire settlement amount is being paid in a lump sum rather than at a weekly rate over a period of time.
Furthermore, if the case is settled in this manner, the City would incur additional costs and fees of Workers’ Compensation Administration Fund Tax in the amount of $293.18; Special Occupational Health & Safety Tax in the amount of $109.94; and Workers’ Comp Court Filing fee in the amount of $140.00. In addition, the City would incur an additional cost and fee for the Cleveland County District Court Filing Fee in the amount of $144.14.
These additional costs and fees total $687.26, which brings the total cost of this settlement to the City to $15,346.26.
Adequate funds are available in the Order/Settlements Account (043-3002-415.21-31).
RECOMMENDATION: For the reasons outlined above, it is believed this Compromise Settlement is fair, reasonable, and in the best interest of the City. In light of Mr. Mulder’s length of employment with the City, it is not anticipated a more favorable ruling for the City could be achieved by further litigation. Acceptance of the Compromise Settlement would require the payments as outlined above. If approved, the settlement amount would be paid to Mr. Mulder 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.