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HomeMy WebLinkAbout1990-04-24; City Council; 10595; Workers comp claim settlement - W. WilkelCIT” OF CARLSBAD - AGENDd BILL “# ’$ f92M WTG. 4/24/90 TITLE: SETTLEMENT OF WORKER‘S COMPENSATION CLAIM OF WALTER WILKEL RECOMMENDED ACTION: Approval of Resolution No. 7fle/17 approving the terms and cond the proposed Compromise and Release which authorizes the payment to Walter Wilkel as settlement of his various worker’s compensat tions of of $32,500 on claims. ITEM EXPLANATION This case arose as the result of claims filed by the applicant, Walter Wilkel. Mr. Wilkel was a Park Maintenance Worker I11 in the Parks & Recreation Department. He sustained work related injuries to his back during the course of his employment with the City. conditions of the proposed Compromise and Release were negotiated by the attorneys representing the applicant and the City of Carlsbad. applicant is specifically waiving any rights he may have to future medical care. However, the applicant is not waiving his right to rehabilitation benefits and may specifically request the same at any time in the future. It is staff’s recommendation that the terms and conditions of the proposed Compromise and Release be approved. The terms and The FISCAL IMPACT The cost of the Compromise and Release will be $32,500, excluding any future rehabilitation benefits which may be provided. for accurately calculating or predicting what those future costs may be. Sufficient funds are available in the worker‘s compensation self-insurance fund to cover the cost of this settlement. There is no method EXHIBITS 1. Resolution No. ?fl-/?’. 2. Proposed Compromi se and Re1 ease 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 l€ 17 1E 1s 2c 21 22 22 24 2: 24 27 2E RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE EXPENDITURE OF FUNDS FOR THE SETTLEMENT OF THE WORKER’S COMPENSATION CLAIM OF WALTER W I LKEL WHEREAS, Mr. John Mullen, Defense Counsel for the City of Carlsbad in this matter, has recommended a settlement in the Worker’s Compensation case of Walter Wilkel; and WHEREAS, there are sufficient funds available in the Worker‘s Compensation Sel f-Insurance Fund to pay the settlement, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the expenditure of $32,500 from the Worker’s Compensation Self-Insurance Fund is authorized for the settlement of said case. 3. That the Council accept the proposed terms and conditions for the Compromise and Release, attached hereto as Exhibit A. /// /// /// /// ///. /// /// /// /// /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 le 19 2c 21 22 2: 24 25 26 27 2e .- PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 24th day of April , 1990, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson NOES: None ABSENT: None ATTEST: ALETHA L. RAUTENKRANZ, City Clerq STATE OF CALIFORNIA 88 SDO 130732 88 SDO 130733 DEPARTMENT OF INDUSTRIAL RELATIONS COMPROMISE AND RELEASE - DIVISION OF INDUSTRIAL ACCIDENTS - CASE NO. SOCIAL SECURITY NO. PLEASE BEE INSThUCTlONS ON REVERSE OF PAGE 2 EEFORE COMPLETING FORM WORKERS COMPENSATION APPEALS BOARD 368-32-3383 EXHIBIT A WALTER WILKEL 1803 Palisades Drive, Carlsbad 92008 A-AMT iEumovEa ADDRESS CITY OF CARLSBAD 1200 Elm Avenue, Carlsbad, CA 92008 C~~~ECT NAY( oc cmmovcn -€SI BIERLY & ASSOCIATES 7750 Daqget St., Ste. 206, San Diego, CA 92111 1. The injured employee claims that while employed as a park maintenance worker II1 foccuAm AT nu€ oc I*UUVI 9/1/88 OCI 9/87 - 88 at Carlsbad CA , by the employer (DATE OT -n fcml ISTATQ (s)he sustained injury arising out of and in the course of employment to back and psych ISTATL WAT CAW5 OC BODY WERE IN-1 2. The parties hereby agree to settle any and all cloims on account of said injury by the payment of the sum of S 32 , 500.00 in addition to any sums heretofore paid by the employer or the insurer to the employee, less amounts set forth in Paragraph No. 6. 3. Upon approval of this compromise agreement by the Workers' Compensation Appeals Board or a workers' compensation judge and payment in accordance with the provisions hereof, said employee releases and forever discharger said employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury, including any and oll liability of said employer and said insurance carrier and each of them to the dependents, heirs, executors, representatives, administrators or assigns of said employee. 4. Unless otherwise expressly provided herein, approval of this agreement RELEASES ANY AND ALL CLAIMS OF APPLICANT'S DEPENDENTS TO DEATH BENEFITS RELATING TO INJURY OR INJURIES COVERED BY THIS COMPROMISE AGREEMENT. The parties have considered the release of these benefits in arriving ut the sum in Paragraph No. 2. 5. Unless otherwise expressly ordered by a workers' compensd-on judge, approval of this agreement DOES NOT RELEASE ANY CLAIM APPLI- CANT MAY NOW OR HEREAFTER HpIVE FOR REHABILITATION OR BENEFITS IN CONNECTION WITH REHABILITATION. 6. The parties represent that he following facts are true: (If facts are disputed, state what each party contends under Paragraph No. 10.) USl DAT OW WORU OUE TO -1 1-V , , DATL oc mnrn ACNU SA- AT %I! OT WUURV 7/5/33 Maximum In diswte PAYMENTS MADE BY EMPLOYER OR INSURANCE CARRIER TEMrOlAlV DISAOIUW IMDEUMW WSOCLT IA- PERlOOS COVMEO See No. 10 below. None $2,697.54 cCI1MANSlcT OSAYUW ImMNlTV roru YRDICU AND YOD~AL mua BENEFITS CLAIMED BY INJURED EMPLOYEE D€CII*IIILIG AM0 ENDIffi DATES OC ALA rUlOOS OW Duf TO TWIS IMT UEMCAL AM0 HOSPITAL ULLS CAI0 ST EY?LOTEE In dispute. None. ~~bp~id~~: See No. 10 below. To Be Paid By: Solely by applicant. THE FOLLOWING AMOUNTS ARE TO BE DEDUCTED FROM THE SETTLEMENT AMOUNT: PAYABLE TO s PAYABLE TO j NONE J PAYABLE TO J PAYABLE TO f PAYABLE TO f PAYABLE TO LEAVING A BALANCE OF $ 32 ' 500 O0 , less approved ottorncy fee (See Paragraph No. O), payable to applicant. (If'payment is to be other than in a lump sum, or there is additional information, specify on separate page(s).) DIA WCAB FORM 1s fRN. 19831 IPAGE 1) 7. Liens not mentioned in Paragraph No. 6 o be disposed of as follows: See No. 10 Below. 8. For the purpose of determining the lien claim(s) filed for benefits paid pursuant to the Unemployment Insurance Code or for benefits furnished by lien claimants defined in Labor Code Sec. 4903.1, the parties propose reduction of the lien claim(s) in accordance with formulae attached. 9. Applicant’s (employee’s) attorney requests a fee of $ . Amount of attorney fee previously paid, if any, 4 10. Reason for Compromise, special provisions regarding rehabilitation and death benefit claims, and additional information: (SEE ADDENDUM ATTACHED HERETO). 11. It is agreed by all parties hereto that the filing of this document is the filing of an application on behalf of the employee, and that the WCAB may in its discretion ret the matter for hearing as a regular application, reserving to the parties the right to put in issue any of the fads admitted herein, and that if hearing is held with this document used as an applicah’on the defendants shall have available to them all defenses hat were available as of the date of filing of this dowment, and that the WCAB may thereafter either approve said Compromise Agreement and Releare or disapprove the same and issue Findings and Award after hearing has been held and the matter regularly submitted for decision. / WITNESS the signature hereof this hY of .19-,af (OATXJ wALm WILKEL nlwss CICNUMmwLoM -€SI THOMAS E. GNIATKOWSKI, Atty. for applicant. STATE OF CALIFORNIA County of A.D., 19 -, before me, On this hY of a Notary Public in and for the said County and State, residing therein, duly commissioned and sworn, personally appeared known to me to be the person- whose name subscribed to the within Instrument, and acknbwledged to me that -he-executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this Certificate first above wrif ten. Norary Public fn and for sad County end State of California DtA WCAB FORM IS (REV. 19831 (PAGE 2) ADDEND'JM TO CO!4PROYIISE AKG RELEASE Walter Wilkel V. City of Carlsbad WCAB CASE NO: 89 SDO 130732; 130733 Paragraph 70.. LIENS: The parties spsciflcally request that the applicant, !%. Walter Wilkel, be held harmless as to the liens/billings of Dr. W.T. Maynes, Dr. Stephen V. Sobel, and Dr. Xanmsrman, a3 well as the lien oE the Employment Development Eepartment. These liens will be negotiated outside of this Congronise and Release agrement by defendant, City of Carlsbad. The lien (as enclosed) of the First Western Xedical Group as relates to medical/legal expenses will be paid by defendanto according to the fee schedule. Paragraph IO.. . PAGE 2A IO. REASON FOR CONPROMISE: There is a true and $ericas disputs as to the issue of injury AOE/COE as tc; the psychiatric pcrtians of this claim as well as to the nature, extent, and duration of the orthopaedic portion of this claim. This dispute extends to the love1 of residual disability, apportianrnent to $re-existing and non-industrial problems, the duration of temporary disabiiity and self-procured medical treatment. By the terms and conditions of this settlement agreement, it is specifically understood that the applicant is forever releasing any and all claims that he may have against the City of Carlsbad occurring during the tenure of his employment with that entity as it relates to applicant's orthopacdic cornplzifits involving and szemning from his back as well 8s zny ax3 all emotional problems and their associated rarnificzticns zllegadiy occurring either as a result of a specific incident or injary or as related to a continuing trauma theory 3f icjury. It is further understood that those residual ranificatians fro3 rhe applicant's emotional and orthopaedic complaints, as 3therwfse incorporated within the present medical record, are to be released within the terms of this settlement agreernect. It is understood that, co,?ctlrrent with esecuting this settlement, bGt not as a condition of this settlement, Mr, Walter Wilkel will be submitting a written resignatioc to the City of Carlsbad indicating his resignation from active enploynent. This settlement is intended to icclude any claim for - interest or penalties or otherwise accrued benefits occurring up through and including thirty (30) days €ollowh3 the iasuarice of an Order approving this Compromise and Release agreement. The parties, by this sectlerent agrement, specifically intend to settle any and all c1airr.s applicant's dependent's p,ay have for potential death benefits which rnay be related to or allegedly stemmirrg from the injury or icjuzies covered by this Conpromise and Release agreement. The parties npeoificaily call this fact to the attention of the Workers' Canpensztion Appeals Board Judge and request that :?e so coinnsnt in the Order Approving Compromise and Release agreement. TemDorary Disability Indemnity: There is a dispute as between the parties concerning potential temporary dissbility bmefits owed to Mr. Wilkel. Applicant alleges various broken periods of temporary disability owing beginning on 9/7/88 and c9ritinuir.q through the date of this Compromise and Release agreenect. During that stated period, it appears that ivIr, Wiikel returned to work and then was placed on temporary disability beriefits by a physician on at least two or three occasions. There also appears to be segments of this time period which the applicant was paid his full salary by the City of Carlsbad. Mr. Wilkel was also paid temporary disability from 9/20/87 through 9/23/87. All other periods remain in dispute. The parties have Some to an agreement that the amotint af $1,000.00 of the agreed to settlement amount is established as a fair and equitable settlement of any and all disputed Periods on the Issue of temporary disability benefits. Applicant Attorney for Apslicant Date ~ Date APPLICANT'S DECLARATION REGARDING VOCATIONAL REHABILITATION BENEFITS, LABOR CODE SECTION 139.5 Re: Walter Wilkel v. City of Carlsbad WCAB CASE NO: 88 SDO 130732; 88 SDO 130733 1. Employees who have had industrial injuries may be entitled to receive vocational rehabilitation benefits if they are likely to be precluded from returning to their employment and would benefit from the provision of vocational rehabilitation services. 2. This benefit, known as vocational rehabilitation, varies with the employee's needs and abilities. This may include an evaluation to identify the type of vocational rehabilitation services which can help the employee to return to suitable employment. These services may involve changing the demands of the employee's usual job; assisting the employee to obtain new employment compatible with his or her abilities, or training the employee for a new occupation. 3. When the employee is a qualified injured worker, all vocational rehabilitation costs are paid by the employer or its insurer. The employee continues to receive temporary disability indemnity payments during the period of entitlement to vocational rehabilitation services. 4. The employee has the right to choose whether he or she will accept the provision of vocational rehabilitation services. Regardless of the employee's choice, other workers' compensation benefits will not be affected. 5. If the employee declines rehabilitation benefits now, he or she may be able to request future consideration of these benefits within statutory time limits. The request must be in writing and submitted to the Rehabilitation Bureau within one year of either a finding of permanent disability or approval of a compromise and release by the Workers' Compensation Appeals Board; or within 5 years from the date of injury. The Rehabilitation Bureau will determine entitlement to services. 6. In the event that I elect to participate in vocational rehabilitation at some future date and am found to be a qualified injured worker, I EXPRESSLY WAIVE ANY POTENTIAL CLAIM FOR ORDINARY COMPENSATION BENEFITS AND MEDICAL TREATMENT FOR ANY INJURIES THAT MAY BE SUSTAINED WHILE PARTICIPATING IN VOCATIONAL REHABILITATION in compliance with the Rodgers v. WCAB (1975) and Weatherspoon v. St. Ferdinand's School (1986) cases. 7. If I sustain an injury while rendering service to another under a vocational rehabilitation plan which creates an employment relationship, the employer in said relationship is not released by this agreement. 8. I, WALTER WILKEL, also understand that any and all potential claims for retroactive rehabilitation vocational temporary disability benefits as well as any and all other rehabilitation benefits have been settled by way of the compromise and release agreement submitted to and approved by the This Workers' Compensation Appeals Board in this matter. declination of rehabilitation benefits shall continue to be in effect until I have complied with Paragraph 5 of this document. 9. I have read and understand this notice and I choose to decline the provision of vocational rehabilitation benefits. EMPLOYEE'S SIGNATURE EMPLOYEE REPRESENTATIVE SIGNATURE DATE :