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RESOLUTION R-1516-101: A RESOLUTION OF THE COUNCIL OF THE CITY OF NORMAN, OKLAHOMA, AUTHORIZING COMPROMISE SETTLEMENT OF THE CLAIM FILED BY ALAN KENT BORCHERDING UNDER THE PROVISIONS OF THE WORKERS' COMPENSATION STATUTES OF THE STATE OF OKLAHOMA IN THE CASE OF ALAN KENT BORCHERDING V. THE CITY OF NORMAN, WORKERS’ COMPENSATION CASE NO. 2014-05125 Q; 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: Alan “Kent’ Borcherding was a Municipal Court Officer for the City of Norman Municipal Court who filed Workers’ Compensation Case No. 2014-05125 Q on May 12, 2014, for a single event injury which occurred on October 17, 2013, to his right shoulder and neck. The case proceeded through the normal litigation process. A court ordered Mediation was held on March 10, 2016, wherein a settlement agreement was reached prior to a trial. Mr. Borcherding has agreed to settle his claim in the total amount of $45,000. The settlement offer is being presented to the City Council at this time. It is recommended that this settlement be accepted.
DISCUSSION: Mr. Borcherding began his employment with the City of Norman Municipal Court on March 1, 2010, as a part time Municipal Court Officer and went full time on May 3, 2010. He was separated from the City of Norman employment on November 6, 2014.
An MRI was performed on November 20, 2013, which revealed a partial rotator cuff tear. Dr. David Bobb performed right shoulder surgery on December 13, 2013, with rotator cuff and biceps tendon repair. He underwent a course of conservative care and physical therapy and was released for the shoulder on May 8, 2014 by Dr. Bobb. Upon further follow up with Dr. Bobb, Mr. Borcherding noted development of pain in his neck following his shoulder surgery. Dr. Darryl Robinson administered injections of anti-inflammatory medicines and radiofrequency treatment for his cervical spine. Dr. Emery Reynolds was ordered by the Workers’ Compensation Court to perform an independent medical examination and on January 5, 2015 determined his neck was aggravated by the right shoulder surgery and rehabilitation. Mr. Borcherding is currently under the care of Dr. Stephen Wilson for pain management.
Issues for Trial. The issue to be tried in this case before the Workers’ Compensation Court is how much, if any, permanent disability Mr. Borcherding suffered due to his injury to his right shoulder and neck and whether continuing medical treatment is warranted. 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.
On September 3, 2015, Dr. Lance E. Rosson opined Mr. Borcherding sustained 35% ($56,525) permanent partial impairment to his right shoulder and 26% ($41,990) permanent partial impairment to his neck. The City’s maximum exposure for permanent partial disability would be $98,515.
On November 17, 2015, Dr. William D. Jones IV opined Mr. Borcherding sustained 8% ($12,920) permanent partial impairment to his right shoulder and 4% ($6,460) permanent partial impairment to his neck. The combined total PPD rating from Dr. Jones is $19,380.
Trial. This case proceeded through the normal litigation process; however, Mr. Borcherding has agreed to a settlement of this case as outlined below. If a trial was held in this case, the Judge could determine nature and extent of the injury to his right shoulder and neck anywhere within the range of the doctors’ opinions as stated above.
Proposed Settlement. The proposed settlement to close this case on a “Compromise Settlement” basis is for a lump sum payment of $45,000.
The offer includes 18% ($29,070) PPD to the Right Shoulder, 8% ($12,920) PPD to the Neck, and $3,010 for future medical costs to completely close the case. As noted above the maximum exposure for permanent partial disability is $56,525 for the right shoulder and $41,990 for the neck for a total of $98,515. These offers are less than one-half of the difference in the medical evidence to the shoulder and less than one-third the difference in the medical evidence to the neck to be presented at trial.
It is felt that the settlement closing 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 this Workers’ Compensation case. This settlement is beneficial to Mr. Borcherding 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.
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 $900; Special Occupational Health & Safety Tax in the amount of $337.50; 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 Court Filing Fee in the amount of $125.70.
These additional costs and fees total $1,503.20, which brings the total cost of this settlement to the City to $46,503.20.
RECOMMENDATION: For the reasons outlined above, it is believed this Compromise Settlement is fair, reasonable, and in the best interest of the City. Due to the permanent restrictions of lifting, reaching overhead, with no crawling or climbing, 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. Borcherding 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.