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IN THE WORKERS COMPENSATION COURT OF THE STATE OF MONTANA

WCC No. 9211.6631 RI


THOMAS R. BROEKER

Petitioner

VS.

STATE COMPENSATION INSURANCE FUND

Respondent/Insurer for

GREAT FALLS COCA-COLA BOTTLING COMPANY

Employer.


JUDGMENT ADOPTING SETTLEMENT

1 The parties herein have entered into a SETTLEMENT AGREEMENT resolving all remaining issues in this case. The agreement was filed with the Court on January 31, 2001, and a hearing was held February 8, 2001, to determine whether the agreement should be approved and to discuss its implementation. During the hearing the parties and the Court agreed that Exhibit 1 and Exhibit 2 to the agreement, which are notices to workers, should be amended to provide that claims for Broeker benefits should be mailed to the Court rather than the State Fund. Other minor amendments were also made.

2 I now find that the agreement adequately protects workers who may be entitled to Broeker benefits and that the settlement is reasonable, indeed it follows in large part guidelines and determinations previously made in the many conferences the Court has held with the parties. THEREFORE,

3 IT IS HEREBY ORDERED AND ADJUDGED that the SETTLEMENT AGREEMENT filed with the Court on January 31, 2001, is hereby approved, with the exception of Exhibits I and 2 to the original agreement, for which the Court, with the approval of the parties, substitutes the attached Exhibits 1-revised and 2-revised.

4 IT IS FURTHER HEREBY ORDERED AND ADJUDGED that the agreement shall be incorporated as a part of this JUDGMENT ADOPTING SETTLEMENT and that parties shall comply with the agreement.

5 FINALLY, IT IS HEREBY ORDERED AND ADJUDGED that, in accordance with the agreement, this Court retains continuing jurisdiction to implement and enforce the agreement.

6 This judgment is certified as final.

DATED in Helena, Montana, this 14th day of February, 2001.

(SEAL)

\s\ Mike McCarter
JUDGE

C: Mr. Lawrence A. Anderson
Mr. Howard F. Strause
Mr. Thomas E. Martello
Mr. William 0. Bronson
Mr. BradleyJ. Luck


SETTLEMENT AGREEMENT

This Settlement Agreement, made and entered into this 31 day of January, 2001, by and between the State Compensation Insurance Fund ("State Fund") and Howard E. Strause and Lawrence A. Anderson ("Strause and Anderson"):

RECITALS

A. An action was commenced and maintained in the Montana Compensation Court by Strause and Anderson entitled Broeker v, State Compensation Mutual Insurance Fund, Cause No. 9211-663 1R1. The legal issues in the matter were ultimately decided by the Montana Supreme Court in Broeker v. State Compensation Mutual Insurance Fund, 275 Mont. 502, 914 P.2d 967 (1996);

B. As a result of the Broeker decision other workers compensation claimants situated similarly with Mr. Broeker may have become entitled to additional biweekly benefits (Broeker benefits). A process was undertaken by the parties hereto to identify the State Fund claimants possibly entitled to Broeker benefits and to calculate potential past due compensation;

C. Several issues have arisen in relation to the entitlement for and calculation of Broeker benefits. The parties have reached an agreement in relation thereto which they believe addresses such issues. The purpose of this Settlement Agreement is to set forth the terms and conditions under which the State Fund will identify and pay Broeker benefits.

NOW THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged, the parties agree as follows:

1. Handling of Claims Arising Between July L 1974 and June 30, 1982.The potential entitlement for Broeker benefits for State Fund claimants injured between July 1, 1974 and June 30, 1982, shall be considered as follows: The State Fund shall publish and pay for a notice in the major newspapers primarily serving Kalispell, Missoula, Helena, Butte, Bozeman, Great Falls and Billings on three consecutive Sundays. The notice size will be at least two columns wide and five inches high. The notice will not be in the legal section and, subject to the advertising standards of each newspaper, will be on page locations approved by Strause and Anderson.

The published notice will be directed to injured workers with injury dates between July 1, 1974 and June 30, 1982, who received workers compensation total disability benefits through the State Fund while also receiving Social Security disability benefits as a result of their injuries who have not settled their claims. The notice will instruct such individuals to submit a request for Broeker benefits in writing to the State Fund along with proper documentation, Proper documentation shall include the workers compensation claim number and written verification from the Social Security Administration of receipt of Social Security benefits.

The form and content of the newspaper notice shall be approved by the parties and the Workers Compensation Court. A copy of the notice is attached hereto as Exhibit 1.

A claim for Broeker benefits will only be considered by the State Fund if it is received within 120 days of the last publication of the notice, is in writing and is accompanied by the claim number and the required written verification of the receipt of Social Security benefits. A failure of a claimant to meet any of the noted requirementswithin the time specified will result in the claim not being reviewed for entitlement to Broeker benefits and a forfeiture of such entitlement. Phone calls will not be considered as proper claims or in lieu of the above procedure and filing requirements.

Claims made as required in this paragraph shall be reviewed by the State Fund and any Broeker benefits due shall be paid in the manner directed herein.

2. Handling of Claims Arising Between July 1, 1982 and February 2, 1997. The potential entitlement for Broeker benefits for State Fund claimants injured between July 1, 1982 and February 2, 1997, shall be considered as follows: Claims with potential entitlement to Broeker benefits during such period have been identified on a computer run (with approximately 6,667 claimants identified). All individuals listed on the computer run will be sent a letter at the address identified on the computer run advising each claimant of a potential entitlement to Broeker benefits and advising of the need to submit proper documentation within 120 days of the date of the letter for consideration of actual entitlement to such benefits. Proper documentation shall include a written request for review accompanied by the State Fund claim number (or, in the alternative, the claimants Social Security number) and written verification from the Social Security Administration of the receipt of Social Security benefits. Claimants will be advised that settled claims are closed and will not be considered for Broeker benefits.

Letters that are returned as undeliverable to the State Fund will not require follow up by it. Such letters will be provided by State Fund to Strause and Anderson within fourteen (14) days who may, at their own expense, attempt to identify current addresses and notify potential claimants.

No claim for Broeker benefits will be accepted more than 120 days after the mailing of the required notice. Claims without all of the proper documentation specified will not be processed.

Timely written claims accompanied by the proper documentation will be reviewed and any Broeker benefits due shall be paid in the manner directed herein.

The form and content of the letters- required hereby shall be approved by the parties and the Workers Compensation Court. A copy of the letter approved by the parties is attached as Exhibit 2.

3. Claims Identified on the CMS System.

All claims on the State Funds CMS system on the date of this Agreement that have a completed Social Security screen will be reviewed to determine eligibility for Broeker benefits. Any other CMS claims (claims open and active on February 3, 1997 or thereafter, approximately 422 claims) identified in the review process which might have an entitlement to Broeker benefits will be reviewed. The State Fund will make reasonable efforts to identif~i claimants who may have an entitlement to Broeker benefits.

All claims with an entitlement to Broeker benefits shall be paid in the manner directed herein.

4. Payment of Broeker Benefits and Attorneys Fees.

Payment of Broeker benefits on claims with injury dates on or after July 1, 1974, that were open and active (i.e., in which total disability benefits were being paid with a Social Security offset) between July 1, 1974 and April 18, 1985, will be paid to the claimants at 100% (i.e., full Broeker entitlement with no reduction for common fund attorneys fees) for

that time period only. Benefits paid for the period April 19, 1985 through July 5, 1996, on such claims, will be paid to the claimants at a percentage of total benefits, with common fund attorneys fees paid to Strause and Anderson out of the claimants entitlement.

Claimants with dates of injury between April 19, 1985 through July 5, 1996, will be paid their Broeker benefits at a percentage of the total benefits, with common fund attorneys fees paid to Strause and Anderson out of their entitlement.

Other claimants who were paid total disability benefits with a social security offset during the period from April 19, 1985 through July 5, 1996, will be paid their Broeker benefits at a percentage of the total benefits, with common fund attorneys fees paid to Strause and Anderson out of their entitlement.

All claims, regardless of the date of injury, with an entitlement to Broeker benefits during the period on or after July 6, 1996, will be paid at 100% (i.e., full Broeker entitlement paid to the claimant with no reduction for common fund attorneys fees). (For example, a 1987 claim open in 1996 will receive Broeker benefits subject to a reduction for common fund fees from 1987 through July 5, 1996, and full benefits, not reduced for common fund fees, thereafter.)

The Workers Compensation Court will set the percentage attorneys fee for those periods in which a common fund fee is paid. The State Fund will not object to a contingency fee of 25% or less.

5. Settlements.

All settlements approved by the Department of Labor or the Workers Compensation Court, and all settlements approved as stipulatedjudgrnents in the Workers Compensation Court will remain closed and are not subject to any review for or entitlement to Broeker benefits, Letters required by Paragraph 2 hereof will not be sent to claimants on claims known to have been settled.

6. Additional Attorneys Fees.

The State Fund will pay Strause and Anderson an additional attorneys fee of $120,000, upon the approval of this agreement. The payment under this paragraph is in addition to common fund fees approved by the Workers Compensation Court consistent with this agreement.

7. Deceased Claimants.

Claimants who died prior to April 5, 1996, will not be entitled to Broeker benefits. Claimants who died on or after April 6, 1996, will have their claims reviewed for a possible entitlement to Broeker benefits if a written claim providing the proper documentation set forth in Paragraphs 1 and 2 is timely presented (within 120 days of the publishing of notice under Paragraph 1 or within 120 days of the mailing of the written notice under Paragraph 2) by an acting and duly appointed Personal Representative.

8. Overpayments.

If an entitlement to Broeker benefits is identified on a claim in which a benefit overpayment exists, the State Fund may reduce the overpayment by taking credit for the Broeker benefits. However, common fund fees, if due on the claim, will be paid to Strause and Anderson before any credit is calculated.

9. Waiver of Defenses.

Upon approval of this agreement by the Court, State Fund agrees to drop all defenses to this action such as statute of limitations, latches, estoppel and waiver. State Fund will waive the defense that post July 1, 1987 claims are not subject to the Broeker decision and thus do not have an entitlement.

10. Court Action.

This document will be presented to the Workers Compensation Court for its approval. Upon approval, the Workers Compensation Court shall enter a consent judgment incorporating the terms of this agreement. However, the Court shall retain jurisdiction in the action to implement and oversee this settlement. The parties shall execute such other documents as are necessary to give full effect to the terms, conditions and spirit of this settlement.

Common fund attorneys fees shall be awarded by the Court subject to a procedure adopted by it. The parties hereto shall cooperate in the process of considering and awarding common fund fees. The State Fund will not object to a common fund contingency fee of 25% or less.

11. Scope of Release.

This settlement shall be submitted to the Workers Compensation Court for consideration and approval. Upon the approval of this settlement by the Workers Compensation Court, all claims between the parties based on the adjustment or handling of this matter, including any collateral claims and other claims or issues that could have been raised before the Workers Compensation Court or any other court ofcompetentj urisdiction including but not limited to claims under ~ 33-18-201 and 242, MCA, and any other Montana statute or regulations and all claims for fraud, misrepresentation, breach of the covenant of good faith and fair dealing and any other common law claim in favor of any party shall be fully and finally settled and resolved with prejudice.

Upon approval of this settlement and entry of the Consent Judgment all benefit entitlement and other issues raised in or arising as a result of the Broeker case and decision will be considered fully and finally settled upon their merits.

12. Further Actions.

The State Fund will cooperate in the establishment of reasonable deadlines, with Court involvement, for the completion of identification, review of claims, and payment of claims with a possible entitlement to Broeker benefits. Reasonable deadlines will take into consideration logistical issues relating to computer programming, file retrieval, file review and man power.

DATED this 31st day of January , 2001.

STATE COMPENSATION MUTUAL INSURANCE FUND

By: \s\ Nancy Butler

Approved by:

STATE COMPENSATION INSURANCE FuND
5 South Last Chance Gulch
Helena, MT 59604

By \s\ Tom Martello
Tom Martello, Legal Counsel

LAWRENCE A. ANDERSON
HOWARD F. STRAUSE
Attorneys at Law
P.O. Box 2608
Great Falls, MT 59403

By: \s\ Howard F. Strause


NOTICE OF WORKERS COMPENSATION COURT
TO WORKERS WITH CLAIMS FOR INDUSTRIAL INJURIES
OCCURRING BETWEEN 1974 AND 1982

If you were injured on the job between July 1, 1974 and June 30, 1982, you may be entitled to receive additional workers compensation benefits if you meet aIl of the following criteria:

1. You received total disability workers compensation benefits from the Montana State Fund as a result of the injury; and

2. You also received Social Security disability benefits during at least part of this time; and

3. You have not settled your workers compensation claim; and

4. You submit written verification to the Workers Compensation Court of receipt of Social Security disability benefits and your workers compensation claim number by ________________________

If you fail to submit this information to the Workers Compensation Court by such date, your claim will not be reviewed.

You must send your verification to the Workers' Compensation Court, P.O. Box 537, Helena, Montana 59624-0537.

DO NOT CALL THE WORKERS COMPENSATION COURT

OR STATE FUND BY TELEPHONE

 

EXHIBIT
1
REVISED


NOTICE TO WORKERS WITH CLAIMS FOR INDUSTRIAL
INJURIES OCCURRING BETWEEN 1982 AND 1997

Dear: __________________

Records indicate that you received workers compensation benefits for a period of time between July 1, 1982 and February 2, 1997, from the Montana State Fund. You may be entitled to receive additional workers' compensation benefits if you meet aIl of the following criteria:

1. You received total disability workers compensation benefits from the Montana State Fund sometime during the period of July 1, 1982 to February 2, 1997; and

2. You also received Social Security disability benefits during at least part of this time; and

3. You have not settled your workers' compensation claim; and

4. You submit written verification to the Workers Compensation Court of receipt of Social Security disability benefits and your workers compensation claim number or Social Security number by ______________. If you fail to submit this information by such date, your claim will not be reviewed.

You must send your verification to the Workers Compensation Court, P.O. Box 537, Helena, MT 59624-0537.

DO NOT CALL THE WORKERS COMPENSATION COURT

OR STATE FUND BY TELEPHONE

EXHIBIT
2
REVISED

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