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CONSIDERATION OF THE CITY ATTORNEY'S RECOMMENDATION FOR APPROVAL OF A COURT ORDER IN THE AMOUNT OF $29,070 REGARDING LEONARD DON PELFREY VS. THE CITY OF NORMAN, WORKERS' COMPENSATION COURT CASE NO. WCC-2012-13572F.
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BACKGROUND: Leonard Don Pelfrey is a Fire Captain who filed Workers Compensation Claim WCC 2012-13572F on December 3, 2012, alleging injury to his left shoulder on August 3, 2012. The case proceeded through the normal litigation process, and a trial was held on February 6, 2014. The Court Award is being presented to City Council at this time. It is recommended that this Order be accepted.
DISCUSSION: Mr. Pelfrey is a 30-year employee of the City of Norman Fire Department. He began his service with the City on September 2, 1983 as a firefighter. Thereafter, he was promoted to Fire Driver Engineer on February 4, 1999 and to Fire Captain on July 15, 2010.
Nature of Claim. Mr. Pelfrey filed this Workers’ Compensation claim on December 3, 2012, alleging a single incident injury on August 3, 2012 to his left shoulder rotator cuff while pulling a hose at a grass fire.
Issues for Trial. The issue before the Workers’ Compensation Court at a trial of this case is the nature and extent of PPD. Permanent partial disability is a factual determination made by the Workers' Compensation Court Trial Judge based on doctors' opinions regarding the extent of permanent partial impairment.
Evaluations. Mr. Pelfrey was evaluated by Dr. J. Arden Blough on November 13, 2013. Dr. Blough opined 40% PPD to the left shoulder (body as a whole) and 32% to the left arm/elbow. That is a total of 72% and equates to $93,024. Dr. Blough also recommended continued medical maintenance. This would be the City’s maximum exposure.
The City had Mr. Pelfrey evaluated by Dr. LeRoy Young on January 6, 2014, who opined Mr. Pelfrey has 6% PPD to his left shoulder (body as a whole) which equates to $9,690. Dr. Young did not recommend continued medical maintenance. 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.
Court Award. This case was heard by the Workers’ Compensation Court on February 6, 2014. After hearing the Claimant’s testimony and considering the expert medical evidence, the Court entered its Order on February 11, 2014, awarding 18% PPD disability to the whole man left shoulder. The Court’s findings are set out in Paragraph Nos. 5 and 7 of the Order, as follows:
-5- THAT as a result of said injury, claimant sustained 18 percent permanent partial impairment to the WHOLE MAN LEFT SHOULDER (arthroscopic rotator cuff repair, biceps tenodesis, acromioplasty, clavicle resection and extensive debridement), for which claimant is entitled to compensation for 90 weeks at $323.00 per week, or the total amount of $29,070.00 of which 45 weeks have accrued and shall be paid in a lump sum of $14,535.00.
-7- THAT respondent or insurance carrier shall pay claimant the accrued portion of the award of herein in lump sum of $14,535.00 and pay the balance of said award at the rate of $323.00 per week until the total award of $29,070.00 (less attorney fee) has been paid to claimant.
As can be noted in Paragraph No. 5 of the Court’s Order, PPD compensation is expressed in terms of “weeks” of compensation with an accompanying “weekly wage rate.” Workers’ Compensation awards are normally paid at the weekly rates over a period of time. Mr. Pelfrey’s weekly wage PPD rate is $323.00. In this instance, a portion of the award has accrued and is to be paid in a lump sum.
If approved by Council, Mr. Pelfrey and his attorney will be paid the accrued lump sum amount and attorney’s fee in the amount of $14,535.00 plus an additional four weeks for processing and Council approval as set forth in the Payment Scheduled attached.
The City will incur additional costs and Workers’ Compensation filing fee in the total amount of $939.43 as set out in Paragraph Nos. 8 and 9 of the Order, plus Cleveland County filing fee of $125.70.
(See attached Payment Table)
The total cost of this Order to $30,135.13.
RECOMMENDATION: The issues tried on February 6, 2014, were the nature and extent. The Award is within the medical evidence submitted in that the PPD award is less than one-third the difference between the medical evaluations. In light of Mr. Pelfrey’s Fire Department position and length of employment with the City, it is not anticipated a more favorable ruling for the City could be achieved by further litigation. It is recommended that the City move forward to comply with this Order. Acceptance of the Order would require the payments as outlined in attached Payment Table. The Order 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.