Norman L. and Catherine J. Forste - Page 34

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          We find that this, combined with DHS’s proposals in the interim             
          drafts indicating its intent to provide $25,130 annual payments             
          to Mr. Forste in settlement of all claims for personal injuries,            
          is evidence that the payments under paragraph 1 were intended as            
          compensation for tort or tort type personal injury claims for               
          which DHS could have been directly liable.                                  
               Respondent’s primary argument on brief is that all the                 
          payments by DHS are simply retirement benefits.  It is true that            
          DHS’s first proposal characterizes the $25,130 as a retirement              
          benefit.  Even though Mr. Forste rejected this, respondent argues           
          that the $25,130 provided in paragraph 1 of the settlement                  
          agreement appears to have been calculated by reference to the               
          retirement provisions of the director’s agreement.  On the other            
          hand, Mr. Forste was not eligible for a regular or early                    
          retirement.  At age 49, he was eligible only for a severance                
          payment of up to 1 year’s salary ($69,000).  DHS rejected the               
          idea of giving Mr. Forste a disability retirement, and in its               
          subsequent draft proposals DHS characterized its $25,130 offer as           
          being for personal injuries.  Thus, it is reasonable to infer               
          that DHS did not intend that payments pursuant to paragraph 1 be            
          made to compensate Mr. Forste for retirement claims.                        
               Respondent points out that DHS issued Forms W-2 for 1996 and           
          for prior years, in which it consistently reported the payments             
          it made under the settlement agreement as taxable income to Mr.             






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