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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)