Workers' Compensation Settlement Agreements - Luke DuveCity of Dubuque
ITEM TITLE:
SUMMARY:
SUGGESTED DISPOSITION:
Copyrighted
November 20, 2017
Consent Items # 20.
Workers' Compensation Settlement Agreements - Luke
Duve
City Attorney recommending approval of two Compromise
Settlement Agreements regarding Workers' Compensation
claims filed against the City of Dubuque by Public Works
Employee Luke Duve.
Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description
Staff Memo
Reddick Letter
Compromise Settlement Agreement - DOI 01/19/11
Compromise Settlement Agreement - DOI 01/20/16
Type
Staff Memo
Supporting Documentation
Supporting Documentation
Supporting Documentation
Masterpiece on the Mississippi
CRENNA M. BRUMWELL, ESQ.
CITY ATTORNEY
To: Mayor Roy D. Buol and
Members of the City Council
DATE: November 13, 2017
z4„
RE: Luke Duve Workers' Compensation Settlements
Dubuque
*America
'11111
2007-2012
2013.2017
Attorney Les Reddick, representing the City of Dubuque, is recommending approval of
two attached Compromise Settlements regarding the Workers' Compensation claims that
were filed against the City of Dubuque by Luke Duve. Luke Duve is a 57 -year old
Equipment Operator II in the Public Works Department and has been a City of Dubuque
employee for approximately 31 years.
Mr. Duve sustained the first injury to his neck and back on January 19, 2011 when he hit
his head on the windshield of a tractor. The injury was accepted by the City as a workers'
compensation injury and all medical benefits paid. He received a 21% permanent
impairment rating from the treating doctor, which was also paid. He was examined by an
independent doctor at the request of his attorney who gave him a 33% whole person
impairment rating and the additional 12% is disputed and has not been paid. Industrial
disability which could be found related to the injury has not been paid, either. Any finding
by a Deputy awarding additional permanency and industrial disability would also carry
with it interest for approximately five years at a rate of 10% per annum.
Mr. Duve injured his neck and back again on January 20, 2016 when he was rear-ended
by a motorist as he sat in a City vehicle. This injury was accepted as work-related and all
treatment has been paid to date. This injury caused final permanent restrictions of 40 -
pound maximum lifting, four hours maximum equipment operation per day, one hour
maximum raking per day, and one hour maximum shoveling per day. Mr. Duve had filed
a civil suit against the driver for this injury. The City has a limited statutory lien against
amounts recovered by Mr. Duve in that suit. That lien totals $33,000 for past payments.
The City is waiving its lien as part of the settlement of both claims.
I recommend approval of the attached Compromise Settlements.
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 589-4381 / FAx (563) 583-1040 / EMAIL cbrumwel@cityofdubuque.org
CMB:tls
Attachment
cc: Michael C. Van Milligen, City Manager
Cori Burbach, Assistant City Manager
Randy Peck, Personnel Manager
John Klostermann, Public Works Director
Les Reddick, Esq.
F:\Users\tsteckle\Workers Comp - Reddick Cases\Duve Luke\MayorCouncil_DuveSettlements_111317.docx
Brian J. Kane
Les V. Reddick*
Brad J. I-Ieying
Todd L. Stevenson*
Kevin T. Deeny**
Bradley B. Kane
Joseph P. Kane
Nicholas J. Kane
David J. Kane
All admitted in Iowa
*Also admitted in Illinois
**Also admitted in Wisconsin
KANE, NORBY & REDDICK, P.C.
ATTORNEYS
2100 ASBURY ROAD, SUITE 2
DUBUQUE, IOWA 52001-3091
November 13, 2017
Ms. Crenna M. Brumwell
City Attorney
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
Retired:
Gary K. Norby
Phone: (563) 582-7980
Facsimile: (563) 582-5312
E-mail: Ireddick@kanenorbylaw.com
kanenorbylaw.com
RE: LUKE DUVE
WORKERS' COMPENSATION SETTLEMENTS
Dear Crenna:
Luke Duve is a 57 -year old Equipment Operator II in the Public Works Department and
has been a City of Dubuque employee for approximately 31 years. He filed two workers'
compensation claims against the City which were mediated by a private mediator on November
6, 2017, and resolved on the terms outlined in the attached Agreements. These two cases were
set for hearing before a Deputy Workers' Compensation Commissioner on December 7, 2017, in
Des Moines, Iowa.
Mr. Duve sustained the first injury to his neck and back on January 19, 2011 when he hit
his head on the windshield of a tractor. The injury was accepted by the City as a workers'
compensation injury and all medical benefits paid. He received a 21% permanent impairment
rating from the treating doctor, which was also paid. He was examined by an independent doctor
at the request of his attorney who gave him a 33% whole person impairment rating and the
additional 12% is disputed and has not been paid. Industrial disability which could be found
related to the injury has not been paid, either. Any finding by a Deputy awarding additional
permanency and industrial disability would also carry with it interest for approximately five
years at a rate of 10% per annum.
Mr. Duve injured his neck and back again on January 20, 2016 when he was rear-ended
by a motorist as he sat in a City vehicle. This injury was accepted as work-related and all
treatment has been paid to date. This injury caused final permanent restrictions of 40 pound
maximum lifting, four hours maximum equipment operation per day, one hour maximum raking
per day, and one hour maximum shoveling per day. Mr. Duve had filed a civil suit against the
driver for this injury. The City has a limited statutory lien against amounts recovered by Mr.
Duve in that suit. That lien totals $33,000 for past payments.
The Agreements are attached. These settlements are fair and reasonable. I would ask that
you submit these Agreements to the City Council for approval.
Very truly yours,
KANE, NOBBY & REDDICK, P.C.
By
Les V. Reddick
LVRlbmo
Enc.
TIDE CITY OF
DUB `i E MEMORANDUM
Masterpiece on the Mississippi
TRACEY STECKLEIN
PARALEGAL
MEMO
To:
Kevin Firnstahl
City Clerk
DATE: November 15, 2017
RE: Luke Duve Workers' Compensation Settlements
Kevin:
Attached for the November 20, 2017 City Council agenda are the two original
Compromise Settlement Agreements, executed by claimant, regarding the Luke Duve
Workers' Compensation claims. After approved at the City Council meeting, I would
appreciate it if you would obtain the City Manager's signature, and then send the original
Agreements back to me for processing.
Thank you.
Attachment
F:\Users\tsteckle\Workers Comp - Reddick Cases\Duve Luke\Firnstahl_OriginalCompromiseSettlementAgreements_111517.docx
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL tsteckle@cityofdubuque.org
BEFORE THE IOWA WORKERS COMPENSATION COMMISSIONER
LUKE S. DUVE
Claimant,
vs.
CITY OF DUBUQUE,
Employer.
Contested Case File No.: 5062870
Compliance File No.: 1611655
Injury date: 1/20/16
COMPROMISE SETTLEMENT
[Iowa Code. Section 85.35(3)]
The undersigned parties submit this Compromise Settlement pursuant to Iowa Code section
85.35(3).
A. A dispute exists under the Iowa Workers' Compensation Law, which the parties
seek to resolve by a full and final compromise disposition of claim`s claim for benefits.
Claimant sustained a work-related injury to his neck and back on January 20, 2016. Claimant has
reached MMI and has been working full-time for employer since then, with accommodations. The
subject of the dispute is the nature and extent of any Chapter 85 benefits owing claimant and
whether any current complaints are related to this injury.
B. If claimant is not represented by an attorney; a claimant's statement and evidence
of the dispute is attached. Rule 876 IAC 6.1.
C. It is further agreed by and between the parties that this settlement was entered into
with the understanding that the lump sum payment of $116,000.00 represents the final and only
award the Claimant, Luke S. Duve, will ever receive from Employer and Insurance Carrier with
respect to the contested workplace injuries alleged herein. The settlement proceeds should,
therefore, be allocated to that period of time extending from the date this agreement is approved
by the Iowa Workers' Compensation Commissioner through the period of Luke S. Duve's life
expectancy. According to the IRS Life Expectancy Table, set out in IRS publication 590, Claimant,
who has a birthdate of July 4, 1.960 and is presently 57 years of age, has a remaining life expectancy
of 27.9 years, or 1,450.8 weeks. The net value of this settlement, after subtracting attorney's fees
of $38,666.67 and other expenses of $475.92 is $76,857.41. Dividing 1,450.8 weeks into the net
settlement amount of $76,857.41 produces a weekly settlement rate of $52.98, a weekly settlement
rate envisioned by and stipulated to by the parties.
It is neither the intent of the parties, nor the purpose of this settlement, to shift to Medicare
the responsibility for payment of medical expenses for the treatment of work-related conditions.
Considerable attention has been given to Claimant's non-foreseeable entitlement to Medicare
benefits under 42 USC §1395y, as well as the Health Care Financing Administration's entitlement
to subrogation and intervention rights pursuant to 42 CFR §441.46 to recover any overpayment
made by Medicare. In this case the Claimant is not a Medicare recipient or beneficiary, the
Claimant has no expectation of becoming a Medicare recipient within the next 30 months, and he
has not applied for Social Security benefits. In addition, the causal relationship between the
medical problems and the employment is disputed by credible medical evidence, and the
settlement amount is below the threshold amount presently used by Medicare and the Center for
Medicare & Medicaid Services. The parties believe that the rights and interests of Medicare
pertaining to future medical care have been accurately considered. No future medical treatment
of his medical conditions alleged to be related to the work injury is anticipated at the time of
settlement based on his good faith belief and advice provided by treating medical provider, Erin J.
Kennedy, M.D. For all of these reasons, the parties do not believe it is necessary to set aside any
portion of the settlement in trust for future medical expenses, or to obtain Medicare's approval of
the settlement and/or waiver of any potential interest in future medical expenses.
D. Release: In consideration of this payment, claimant releases and discharges the
above employer and insurance carrier from all liability under the Iowa Workers' Compensation
Law for the above compromised claim.
E. Statement of Awareness of Claimant: I have read the compromise settlement and
attached page(s). I understand that the money I receive under this settlement is the total amount I
will receive from my claim and that there will not be a hearing and decision on my claim. I am
aware that if the Workers' Compensation Commissioner approves this compromise settlement and
the employer/insurance carrier pays me the agreed sum, then 1 am barred from future claims or
benefits under the Iowa Workers' Compensation Law for the injury(ies) compronus d. I
understand I may: 1) consult with an attorney of my own choosing, or 2) call the Iowa Division of
Workers' Compensation at (515) 281-5387, or both in order to receive a full explanation of the
terms of this document and of my rights under the Iowa Workers' Compensation Law. I have either
done so or freely waive my right to do so.
Claimant's Attorney
Arthur F. Gilloon
//(° /(
Date
Claimant
Luke S. Duve
Subscribed and sworn to by clahnant before me on this 0 day of Alo
2017
KAT1EN -KUHLE
COMMISSION NO. 163496
MY COMMISSION EXPIRES
)(17L-?
:ary Public
(
Employer/Insurance Carrier: The employe nsurance carrier consents to the compromise
settlement.
;
Employer/Insurance CarrieAttorney
Les V. Reddick
Employer/Insurance arrier
Michael C. Van Miiligen
Date
/( 7
Date
ORDER
I find that substantial evidence supports the terms of the foregoing settlement, the
employee knowingly waives hearing, decision, and resulting statutory benefits and the settlement
is a reasonable and informed compromise of the competing interests of the parties. The foregoing
settlement is therefore approved this day of , 2017.
Iowa Workers' Compensation Commissioner
The information provided will be open for public inspection under Iowa Code §§ 22.11 and
86.45(1).
14-0025 (7/05)
BEFORE THE IOWA WORKERS COMPENSATION COMMISSIONER
LUKE S. DUVE
Claimant,
vs.
CITY OF DUBUQUE,
Employer.
Contested Case File No.: 5062869
Compliance File No,: 1535315
Injurydate: 1/19/11
COMPROMISE SETTLEMENT
[Iowa Code Section 85.35(3)]
The undersigned parties submit this Compromise Settlement pursuant to Iowa Code section
85.35(3).
A. A dispute exists under the Iowa Workers' Compensation Law, which the parties
seek to resolve by a full and final compromise disposition of claimant's claim for benefits.
Claimant sustained a work-related injury to his neck and back on January 19, 2011. Claimant has
been released to return to work without restrictions. The subject of the dispute is the nature and
extent of any Chapter 85 benefits owing claimant and whether any current complaints are related
to this injury.
B. If claimant is not represented by an attorney; a claimant's statement and evidence
of the dispute is attached. Rule 876 IAC 6.1.
C, It is further agreed by and between the parties that this settlementwas entered into with
the understanding that the lump sum payment of $100,000.00 represents the final and only award the
Claimant, Luke S. Duve, will ever receive from Employer and Insurance Carrier with respect to the
contestedworkpaee injuries alleged herein. The settlement proceeds should, therefore, be allocated to
that period of time extending from the date this agreement is approved by the Iowa Workers'
Compensation Commissioner through the period of Luke S. Duve's life expectancy. According to the
IRS Life Expectancy Table, set out in IRS publication 590, Claimant, who has a birthdate of July
4, 1960 and is presently 57 years of age, has a remaining life expectancy of 27.9 years, or 1,450.8
weeks. The e net value of this settlement, after subtracting attorney's fees of $33,333.33 and other
expenses of $384.17 is $66,282.50. Dividing 1,450.8 weeks into the net settlement amount of
$66,282.50 produces a weekly settlement rate of $45.69, a weekly settlement rate envisioned by and
stipulated to by the parties.
It is neither the intent of the parties, nor the purpose of this settlement, to shift to Medicare the
responsibility for payment of medical expenses for the treatment of work-related conditions.
Considerable attention has been given to Claimant's non -foreseeable entitlement to Medicare benefits
under 42 USC §1395y, as well as the Health Care Financing Administration's entitlement to
subrogation and intervention rights pursuant to 42 CFR §441.46 to recover any overpayment made by
Medicare. In this case the Claimant is not a Medicare recipient or beneficiary, the Claimant has no
expectation of becoming a Medicare recipient within the next 30 months, and he has not applied for
Social Security benefits. In addition, the causal relationship between the medical problems and the
employment is disputed by credible medical evidence, and the settlement amount is below the
threshold amount presently used by Medicare and the Center for Medicare & Medicaid Services. The
parties believe that the rights and interests of Medicare pertaining to future medical care have been
accurately considered. No future medical treatment of his medical conditions alleged to be related to
the work injury is anticipated at the time of settlement based on his good faith belief and advice
provided by treating medical provider, Erin J. Kennedy, M.D. For all of these reasons, the parties do
not believe it necessary to set aside any portion of the settlement in trust for future medical expenses,
or to obtain Medicare's approval of the settlement and/or waiver of any potential interest in future
medical expenses.
D. Release: In consideration of this payment, claimant releases and discharges the
above employer and insurance carrier from all liability under the Iowa Workers' Compensation
Law for the above compromised claim.
E. Statement of Awareness of ClaimantI have read the compromise settlement and
attached page(s). I understand that the money I receive under this settlement is the total amount I
will receive from my claim and that there will not be a hearing and decision on my claim. I am
aware that if the Workers' Compensation Commissioner approves this compromise settlement and
the employer/insurance carrier pays me the agreed sum, then I am barred from future claims or
benefits under the Iowa Workers' Compensation Law for the injury(ies) compromised. I
understand I may: 1) consult with an attorney of my own choosing, or 2) call the Iowa Division of
Workers' Compensation at (515) 281-5387, or both in order to receive a full explanation of the
terms of this document and of my rights under the Iowa Workers' Compensation Law. I have either
done so or freely waive my right to do so.
Al;&(W/ ?-
Claimant's Attorney Date
Arthur F. Gilloon
QLr aex2
Date
Luke Sv7Duve
Subscribed and sworn to by claimant before me on this
2017
KAREN M. KUHLE
COMMISSION NO. 163496
MY OMMISSION EXPIRES
)c
-67"-
day of )Vo
Public
Emnlover/Insurance Carrier: The employer/insurance carrier consents to the compromise
settlement.
Employer/Insurance Carrier's Att•
Les V. Reddick
Employer/Insurance Carrid
Michael C. Van Milligen
Date
Efate
ORDER
I find that substantial evidence supports the terms of the foregoing settlement, the
employee knowingly waives hearing, decision, and resulting statutory benefits and the settlement
is a reasonable and informed compromise of the competing interests of the parties. The foregoing
settlement is therefore approved this day of . 2017.
Iowa Workers' Compensation Commissioner
The info infouuation provided will be open for public inspection under Iowa Code §§ 22,11 and
86.45(1).
14-0025 (7/05)