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HomeMy WebLinkAbout11/14/1996SPECIAL HEARING RISK MANAGEMENT CLAIMS REVIEW COIVEq=E Thursday, November 14, 1996 The Board of County Commissioners of Indian River County, Florida, sitting as the Risk Management Claims Review Committee met in Special Session at the County Commission Chambers, 1840 25th Street, Vero Beach, Florida, on Thursday, November 14, at 10:05 a. m. Present were Fran B. Adams, Chairman; Carolyn K. Eggert, Vice Chairman; Kenneth R. Macht; Richard N. Bird; and John W. Tipp.in. Also present were James E. Chandler, County Administrator; Charles P. Vitunac, County Attorney; Beth Jordan, Risk Manager; Tobi Erts, Occupational Health Nurse; and Barbara Bonnah, Deputy Clerk. The Chairman called the meeting to order. County Attorney Charles Vitunac advised that the Board of County Commissioners is sitting as the Risk Management Claims Review Committee to review a Workers Compensation claim/ settlement on Gerald R. Schuckers. This meeting is confidential and closed to the public. Minutes will be taken, and the hearing will be recorded by a Deputy Clerk. Administrator Chandler advised that this is the first Workers' Compensation claim that we have had to bring to the Board since the inception of the self-insurance program. Risk Manager Beth Jordan presented the following recommendtion for settlement: 1 600K 099 PAGE 851 NOVEMBER 14, 1996 TO: Claims Review Committee Fran B. Adams, Chairman Carolyn K. Eggert, Vice Chairman Richard N. Bird Kenneth R. Macht John W. Tippin THRU: James E. Chandler, County Administrator FROM: Beth Jordan, Risk Manager DATE: 5 November 1996 SUBJECT: Proposed Mediation Settlement; Gerald R. Schuckers 600K 099 PAGE 851 B On Thursday, November 14, 1996, members of the Board of County Commissioners, as the Claims Review Committee, will meet in closed session at 10 a.m. to review the proposed mediated settlement with Gerald R. Schuckers, a Utilities Services employee. A court reporter will be present to record the meeting. Background On May 12, 1995, Mr. Schuckers was laying concrete blocks at the West Regional Wastewater Plant when he injured his back. Through workers' compensation, he was treated by numerous physicians and other licensed health care providers locally, in Melbourne and in Orlando. Complicating the strain which he suffered during the County's employment was a pre-existing 1978 back surgery which left him with a residual condition. This previous back surgery was not work-related. Although physicians assigned the County's injury as contributing 3 to 3.5 percent to his permanent partial physical disability, he has a significant psychiatric impairment which he attributes to the County accident It is on the strength of this psychiatric injury that his claim is being presented through his attorney. Given Mr. Schuckers' age (52 years) and his relatively minor permanent partial physical disability, staff diligently worked through rehabilitation providers to assess Mr. Schuckers' functional vocational capacity. He refused to cooperate and given his acceptance as disabled by the Social Security Administration, combined with the psychiatric overlay, we do not believe that rehabilitation efforts will be successful. Analysis As referenced above, staff worked through two rehabilitation providers in an attempt to return Mr. Schuckers to employment His psychiatric condition, however, has presented the maior obstacle to these efforts. Under workers' compensation law, the threshold for causal relationship between a psychiatric condition and an injury is minimal, and Mr. Schuckers' assertion is that his condition is attributable to his injury. Attached is a summary from the County's defense counsel, Paul Westcott, in which he outlines the financial implications of the claim. Psychiatric care will be ongoing and costly, and present value of the claim is evaluated at $51,000.00 to $102,000.00. To date, $15,932.96 has been paid in lost wages and $8,112.98 in medical costs. On September 27, we attended mediation for this claim. It was held in the courthouse because of security concerns. After several hours of negotiations, and with substantial- assistance from the mediator, we reached the proposed settlement literally on the courthouse steps since we had been asked by courthouse staff to leave the building because of the late hour. Over the next several days, Mr. Schuckers and his wife became disgruntled with the offer and negotiations continued between the attorneys. Mr. and Mrs. Schuckers believe his claim is worth considerably more than the proposed settlement While staff tried to limit the settlement to a sum under $50,000.00, we believe the settlement is well within the lower boundaries of the present value. Additionally, given Mr. Schuckers condition and open anger toward the County and its staff, we believe that the County's best interests will be served by the proposed settlement. 2 NOVEMBER 14, 1996 Recommendation Staff recommends that the Committee approve the mediated settlement of $65,000.00 plus a guideline fee. This is the first such workers' compensation settlement brought to this Committee since the inception of the self-insurance program. cc: Charles Vitunac, County Attorney Ron Baker, Personnel Director (� AI CI Cl CAS I Joe Baird, OMB Director Terry Pinto, Utilities Director STEVEN A. RISSMAN RICHARD H. WEISBERG ROBERT C. BARRETT JENNINGS L. HURT III ROBERTA.DONAHUE JOHN E. MCLAIN III RICHARD S. WOMBLE RANDALL M. BOLINGER JOHN P. DALY HILLAREY A. MCCALL STACIE B. GREENE ADMINISTRATOR W. SCOTT PETERSON WALTER G. BENJAMIN ROBERT B.BENNETT DOUGLAS W. BOND THOMAS T. CLIFFORD KATHLEEN S. CUMMING VANCE R. DAWSON JOSEPH T. FARRELL JILL K FOLEY RISSMAN, WEISBERG, BARRETT, HURT, DONAHUE & MCLAIN, P A. ATTORNEYS AT LAW 201 EAST PINE STREET 15TH FLOOR ORLANDO. FLORIDA 32801 TELEPHONE (407) 839-0120 TELECOPIER (407) 841-9726 BARNETT PLAZA 101 EAST KENNEDY BOULEVARD SUITE 1900 TAMPA. FLORIDA 33602 TELEPHONE 18131221-3114 TELECOPIER (8131221-3033 Via Facsimile Ms. Beth Jordan Indian River County 1840 25th Street Vero Beach, FL 32960 Re: Our File No. Carrier No. Claim No. Employee Employer D/Accident Dear Beth: CITRUS FINANCIAL CENTER 1717 INDIAN RIVER BOULEVARD SUITE 201 VERO BEACH. FLORIDA 32960 TELEPHONE 1407) 569-7960 TELECOPIER (407) 569-4513 PLEASE REPLY To: VERo BEACH VWV11\1\_ October 31, 1996 423-54502 12-00912 173-34-4581 Gerald Schuckers Indian River County 05/12/95 MICHAEL J FURBUSH THEODORE N GOLDSTEIN HUNTER A. HALL MICHAEL V HAMMOND KELLY HYDE HANSKENNON ROBERT A. KINGSFORD LISA E. LAZAN RAYMOND A. LOPEZ TORBEN S. MAD50N III RICHARD B. MANGAN JR. THOMAS H. MCDONALD MARY GAN NON-MCMURRY DAVID B. MOFFETT VINCENT R. PAWLOWSKI DANIEL M. POLLACK GREGORY D. PRYSOCK RONALD T. RIDER RANDY E. SCHIMMELPFENNIG RICHARD A SIMON MARKS.SPANGLER WARREN K. SPONSLER DIANE L. SUDIA KRISTIN SWANSON-MACE PAUL T. TERLIZZE5E F. PAUL TIPTON PAUL L. WESTCOTT ART C. YOUNG As you know, we have tentatively reached a negotiated settlement on the above referenced matter. The case was settled for $65,000.00 plus a guideline fee. 3 NOVEMBER 14, 1996 BOOK 099 PACES51 c, deterioration precipitated by the surgical intervention utilized to correct the prior problem. However, Dr. Hussamy did testify in such a way that could attribute a 3% permanent partial impairment rating to his May 12, 1995 accident. Dr. Seig has also been deposed. He was willing to assign a 3.5% rating to the claimant's industrial accident with Indian River County. The willingness of these physicians to assign some permanency to the May 12, 1995 accident seriously complicates our case. We have already paid the claimant the impairment benefits which result from that rating. However, the claimant is asserting that he is unable to work as a result of the accident which occurred at Indian River County. The County has made every effort to force him to return to work. However, he has resisted all of those efforts. The most troubling aspect of this case is the apparent psychiatric overlay which exists. This claimant seems to be very unstable and distraught. Dr. Dippy has indicated that the claimant does suffer from depression which seems to be related to the May 12, 1995 accident. The threshold for causal relationship between a psychiatric condition and a workers' compensation injury is very minimal. All that needs to occur is that the claimant suffer some form of physical injury. In this case, the twisting accident will suffice. Second, the claimant needs to establish that he is suffering from a psychiatric disorder which is attributable to that injury. In this case, Dr. Dippy's impression will satisfy that issue. A psychiatric condition can be a singular basis for someone's acceptance as permanently and totally disabled. Mr. Schuckers has been accepted by social security as being entitled to social security disability benefits. That is a significant fact in light of the May 12, 1995 date of accident. The statute in existence for that date allows a claimant to be determined permanently and totally disabled if he is severely disabled enough to receive social security disability benefits. The claimant's argument is going to be that the May 12, 1995 accident pushed him over the edge and made him unemployable. Therefore, it is the May 12, 1995 accident that has rendered him permanently and totally disabled. ; Given the social security benefits that he is receiving, the present value of this case is in the range of $170,000.00 for the indemnity benefits alone. Consideration must also be given to the exposure for ongoing medical care which will inevitably include psychiatric care. As I am sure you are aware, psychiatric care can be quite expensive. It involves frequent office visits together with expensive medications. The settlement value for the medical benefits alone on this case is easily in the vicinity of $18,000.00 to $25,000.00. The indemnity benefits on permanent total disability cases settle between 30% and 60% of the present value. The range depends upon the likelihood that the claimant is going to be found entitled to those benefits. Applying; that range to the present value gives rise to an indemnity settlement range between $51,000.00 and $102,000.00. In all probability, the Judge of Compensation Claims would be compelled by the fact that this claimant had a successful work history until the May 12, 1995 accident. It could be easy for the claimant to convince the judge that the May 12. 1995 accident is the major contributing cause to his inability to return to work, need for ongoing medical care, and need for ongoing psychiatric care. Therefore, I believe that this settlement is very beneficial to the County. The exposure for. indemnity benefits, medical benefits, and resultant_ attorney's fees will be severe. 4 NOVEMBER 14, 1996 A If you have any questions, please feel free to contact me. I look forward to hearing from you. PLW/evc cc: Ms. Maria Beahm/Insurance Servicing & Adjusting Company Risk Manager Beth Jordan advised that Mr. Schuckers' initial treatment was with Dr. Coren at the Doctors' Clinic. Numerous tests were conducted and the initial diagnosis was degenerative lumbar disk disease which does not point to a long standing Workers' Compensation claim but is more idiomatic of a condition that a person would have anyway. He has a degenerative condition. However, his allegation is that lifting the block on May 12, 1995 aggravated that existing condition, and it is that aggravation that we are dealing with here. In addition to Dr. Coren, Mr. Schuckers was seen by Dr. Omar Hussamy, an orthopedic surgeon in Vero Beach, who recommended epidermal steroid injections which were given through outpatient services at Indian River Memorial Hospital. He also went through a series of physical therapy treatments with Mr. Donovan at the Doctors' Clinic. He then had a neurological evaluation through Dr. Taher Husainy at the Doctors' Clinic who recommended that he return to light duty work. It was Dr. Husainy's opinion that it was a degenerate condition and that the low back strain Mr. Schuckers had suffered on the job should have been resolved by that point in time. Mrs. Jordan related that after Mr. Schuckers returned to work, there were numerous events in which Mr. Schuckers would return to work for a few days and would go back out again. Terry Southard, who was his supervisor at the wastewater treatment plant, went above and beyond the call of duty to accommodate Mr. Schuckers. He went so far as to have a cot brought into the office so that Mr. Schuckers could rest when he was not answering the telephone or doing other routine sedentary type work. Mr. Schuckers continued to complain of pain and hired an attorney out of Orlando. Mr. Schuckers was sent to get second opinions from Dr. Seig, an orthopedic surgeon, and Dr. Theodotou, a neurosurgeon. Finally, he was sent to Dr. Dippy, a psychiatrist. 5 NOVEMBER 14, 1996 BOOK 090 FACE 851: E a MCA, O1;y9 FACE851F. t�nn«e nrnrTt n � a psychiatrist. It was at that psychiatric evaluation that the tide began to turn rather dramatically in that the psychiatrist' opinion was that Mr. Schuckers would not be able to return to work based upon psychiatric trauma that he had suffered as a result of his injury. It is that psychiatric overlay and depression we f dealing with in this are proposed settlement. Mrs. Jordan reported that staff came away from the mediation with the proposal that is before the Board. Staff feels $65 00 an equitable amount for Mr. Schuckers. � 0 is wage loss and future wage loss. The settlement closes out g is only 52 years old. The settlement chuckers is a young man, he includin g ps chiatriY c� closes out future medical which is where our exposure really lies. Administrator Chandler pointed out that the Social Securit Administration has determined Y permanently disabled and he is receiving ccepted him, as totally Mrs. Payments from them also. Jordan added that Mr. Schuckers' Social Security disability status will be reviewed every 2 years, given his age nd his condition. However, that doesn't figure into this decision. commissioner Bird asked about the attorney fees and Mrs. Jordan advised that the attorney fees are $7,250, which brie s t total to $72,250. 9 he Chairman Adams asked why this case came before the Board, and Mrs. Jordan explained that any amount over $50,000 had to c before the Board. ome ON MOTION by Commissioner Eggert, SECONDED by Commissioner Tippin, the Board unanimous) the settlement of MY approved Mr. Schuckers' Workers' Compensation claim in the amount of $65,000'plus $7,250 attorney fees, as recommended by the County's special counsel. a. m. There being no further business, the Board adjourned at 10:15 ATTEST: t� a J. K. Barton, Clerk AA N cz. Q�0� � - =�4 - 9 7 NOVEMBER 14, 1996 6 Fran B. Adams, Chairman