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RESOLUTION NO. R-1314-72: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN OKLAHOMA, AUTHORIZING COMPROMISE SETTLEMENT OF CLAIMS FILED BY MARVIN BARTON UNDER THE PROVISIONS OF THE WORKERS' COMPENSATION STATUTES OF THE STATE OF OKLAHOMA IN THE CASES OF MARVIN BARTON V. THE CITY OF NORMAN, WORKERS' COMPENSATION CASE NO. WCC-2012-12945 A AND WCC 2013-07113 A; 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: Marvin Barton, a Maintenance Worker for Sewer Line Maintenance in the Utilities Department, assigned to a Line Camera Truck. He filed Workers’ Compensation Cases No. WCC 2012-12945 A on November 15, 2012 and WCC 2013-07113 A (hearing loss) on July 5, 2013. Mr. Barton alleged a single occurrence incident involving his heart while working for the City of Norman on November 2, 2012. The case proceeded through the normal litigation process and, prior to a scheduled trial on November 5, 2013, Mr. Barton offered to settle his cases for $99,500. This matter was discussed in Executive Session on November 12, 2013. The settlement offer is being presented to City Council at this time. It is recommended that this settlement be accepted.
DISCUSSION: Mr. Barton is a nearly 22 year employee of the City of Norman. He began his service with the City of Norman on January 10, 1992 as a Maintenance Worker for Line Maintenance in the Utilities Department. In September of 1996, he was assigned to the Line Camera trucks. He filed two Workers’ Compensation claims: one on November 15, 2012 (heart) and one on July 5, 2013 (hearing).
WCC 2012-12945 (Heart)
Nature of Claim.
Mr. Barton filed this Workers’ Compensation claim alleging heart attack while on-the-job performing his job duties.
Issues for Trial. Although it was conceded Mr. Barton suffered a heart attack while at work, the City disputed that Mr. Barton’s heart attack was a job related injury. A primary issue before the Workers’ Compensation Court at a trial of this case would be whether Mr. Barton suffered an OJI to his heart. The medical documentation in this case confirms that Mr. Barton suffered a myocardial infarction (heart attack) while at work for the City of Norman on November 2, 2012. As discussed with Council previously in closed session, because of Mr. Barton’s prior medical history relating to his heart, and because Mr. Barton’s job assignments are not normally strenuous in nature, a plausible argument could be made a trial that the heart attack, although occurring while at work, was not related to his City employment. The probability of whether the City would prevail at trial on this issue was discussed in closed session.
If the heart attack is determined by the Court to be related to City employment, then the other issues for trial would be the nature of the disability, whether permanent or not, and then the extent of the disability, whether partial disability or total disability. These issues are factual determinations made by the Workers' Compensation Court Trial Judge based on the testimony and evidence presented trial and the doctors' opinions regarding the extent of impairment.
Medical Evaluations. Mr. Barton was evaluated by Drs. Hugh G. McClure and M. Stephen Wilson. Dr. McClure opined 39% (49% less 10% pre-existing) PPD to the heart and Dr. Wilson opined 25% psychological overlay. These opinions equate to $62,985 and $40,375, respectively, for a total of $103,360, the City’s maximum exposure. The City had Mr. Barton evaluated Dr. Hensley who opined Mr. Barton has 15% (30% less 15% pre-existing) PPD to his heart and 0% for psychological overlay. This opinion equates to $24,225. The Worker’s Compensation Court Trial Judge is free to make a ruling within the range of the medical evidence presented at the time of trial.
Permanent Partial Disability. The maximum exposure for PPD in the heart case is $103,360. The minimum exposure, if determined to be job related, is $24,225. If PPD is awarded, Mr. Barton would be entitled to weekly payments of $323 (pursuant to the State average weekly wage and maximums), until paid in full.
Permanent Total Disability. Mr. Barton also alleges permanent “total” disability (PTD) as an alternative to permanent partial disability (PPD). PTD is an option, if awarded, whereby a claimant is paid 70% of his average weekly wages, in this case $659.05, until such time as the employee reaches the age of maximum Social Security retirement benefits or for a period of 15 years, whichever is longer. In this instance, the City’s liability would be $659.05/weekly for 15 years, or $514,059.
WCC 2013-07113 A (Binaural Hearing)
Mr. Barton filed this Workers’ Compensation claim alleging cumulative bilateral hearing loss on July 5, 2013.
Issues for Trial. The issues before the Workers’ Compensation Court at a trial of this case would be the nature and extent of hearing loss in each ear. These issues are also factual determinations made by the Workers' Compensation Court Trial Judge based on the testimony and evidence presented trial and the doctors' opinions regarding the extent of impairment.
Medical Evaluations. Mr. Barton was evaluated by Dr. McClure who opined 18.8% (no pre-existing) in addition to recommending provision of hearing aids, which equates $20,038.92 plus $7,500, the City’s maximum exposure. The City had Mr. Barton evaluated by Dr. Hensley who opined 6.1% (12.2% less 6.1% pre-existing) which equates to $6,501.99. This evaluation did not recommend hearing aids. Again, the Worker’s Compensation Court Trial Judge is free to make a ruling within the range of the medical evidence presented at the time of trial.
Settlement. Mr. Barton, through his attorney, has proposed settlement of both cases on a Compromise Settlement basis for a lump sum payment of $99,500 which represents: 40% PPD to the heart (32% heart and 8% psychological overlay) which equates to $64,600; $18,044 for future Medicare set aside; and 13% PPD (binaural hearing) which equates to $13,856 plus hearing aids in the amount of $3,000 ($16,856 total).
This Compromise Settlement is beneficial to the City in that it is a full, final and complete settlement of any and all claims in these Workers’ Compensation cases. Moreover, the hearing loss settlement offer is in keeping with or lower than what the City has been ordered to pay in past years in similar cases by the Workers’ Compensation Court. Furthermore, the heart settlement is in keeping with a similar permanent total disability case previously settled.
Should these cases proceed to trial, it is reasonably possible that the City could be ordered to pay more than the settlement offer due to Mr. Barton’s length of service, the nature and extent of his injuries and subsequent continued medical maintenance. This settlement is beneficial to Mr. Barton 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. Barton and his attorney would be paid in a lump sum of $99,500. In addition, costs and fees for both cases total $2,688.94, bringing the total to $102,188.94. (See attached Settlement Schedule.)
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. Barton 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.