CHERYL CRISS, Employee/Petitioner, v. FIDELITY BLDG. SERVS., INC., and AMERICAN COMP. INS. CO./RTW, INC., Employer-Insurer.
WORKERS' COMPENSATION COURT OF APPEALS
JANUARY 30, 2002
VACATION OF AWARD - VOID OR VOIDABLE AWARD. The pro se employee failed to establish any fraud, misconduct, unfairness or overreaching sufficient to vacate or void the Stipulation for Settlement, nor did the employee establish a substantial change in medical condition since the Award on Stipulation.
Petition to vacate denied.
Determined by: Johnson, J. Wilson, J., and Pederson, J.
THOMAS L. JOHNSON, Judge
The pro se employee petitions this court to vacate and set aside an Award on Stipulation, served and filed July 5, 2001. We deny the petition to vacate.
The employee, Cheryl Criss, sustained an admitted, work-related injury to her right hand and wrist on May 2, 2000, while working for Fidelity Building Services, Inc., the employer, insured by American Compensation Insurance Company/RTW, Inc. The employer and insurer accepted liability and paid workers= compensation benefits to the employee.
The employee first received treatment for right wrist complaints at the United Hospital emergency room on May 10, 2000. She was given ibuprofen and a splint, and was released to return to work with restrictions. The employee saw Dr. Xiong in follow-up on May 25, 2000. Dr. Xiong diagnosed a right wrist sprain and took the employee off work for two weeks. The employee returned to work for the employer with light-duty restrictions on June 5, 2000. In visits on June 6 and June 19, 2000, the employee complained of gastrointestinal side effects, attributing her symptoms to the medications she was taking. She also expressed concern about injuring her left arm and hand due to overuse.
Dr. Xiong referred the employee to a hand surgeon, Dr. Haber, who saw the employee on June 26, 2000. Dr. Haber diagnosed right wrist pain, administered a steroid injection into the wrist, and restricted the employee to left hand work only. A bone scan on July 17 and an EMG on August 15, 2000 were both normal. On July 24, 2000, Dr. Haber provided new work restrictions, limiting use of the left extremity as well. The employee continued to perform light-duty work for the employer.
On July 27, 2000, the employee was seen at the Regions Hospital emergency room complaining of right wrist pain and swelling. She was referred to the Regions occupational health clinic where she was examined by Dr. McGrail on August 1, 2000. The doctor noted a history of peptic ulcer disease and a likely cervical disc herniation in 1999. Dr. McGrail diagnosed a probable right wrist and forearm over-use disorder, possibly chronic tendinitis, and right hand and wrist pain of uncertain etiology. He released the employee to return to work with restrictions of no lifting, carrying, pushing or pulling over two pounds, light gripping only with both hands, and no forceful gripping or grasping such as vacuuming or sweeping.
The employee was seen that same day by her primary care physician, Dr. Paul, reporting abdominal pain and episodes of bleeding. The doctor diagnosed gastritis, likely NSAID-induced, and prescribed Prevacid. On August 15, 2000, Dr. Paul referred the employee to a psychologist, noting she was dealing with significant life stressors and had ongoing abdominal discomfort that appeared related to stress and her work injury.
On August 3, 2000, the employee filed a Rehabilitation Request seeking assistance finding new employment. Michael Stern, a qualified rehabilitation consultant (QRC), by report dated August 23, 2000, concluded the employee would benefit from rehabilitation services, but recommended initially working with the employer to develop appropriate work. The employee disagreed with QRC Stern=s recommendation and requested a different QRC. A Rehabilitation Plan was signed with a new QRC, Marcia Cheney, on September 11, 2000. The vocational goal was a return to work with the same employer, although the employee continued to prefer a return to work with a different employer.
The employee returned to see Dr. McGrail on September 11, 2000. He noted abdominal discomfort and depression secondary to her job situation. Dr. McGrail ordered an MRI scan, and provided restrictions of no lifting, carrying, pushing or pulling over 20 pounds, no repetitive use of the right arm and hand, a limit of 20 minutes repetitive work with the left hand, then 20 minutes of non-repetitive work and 10 minutes in between in an eight-hour day. The employee returned to Dr. McGrail on October 16, 2000, reporting no change in the right hand, but noting some left upper extremity discomfort due to compensation. She was seen again on October 19, 2000, reporting ongoing depression which she attributed to significant workplace stress.
The September 25, 2000 MRI scan revealed an eight mm cyst in the right wrist. The employee was referred to Dr. Zinberg, a hand surgeon, whom she saw on October 31, 2000. Dr. Zinberg diagnosed extensor carpiulnar (ECU) tenosynovitis and indicated the bone cyst was probably unrelated and inconsequential. He further restricted the employee to no gripping or lifting with the right hand.
On November 7, 2000, the employee was seen in the Regions Hospital emergency room complaining of pain and weakness in both extremities. The employee stated she had ulcers and reflux, that her job was very stressful causing all of her symptoms, and hoped she would soon be able to quit the job due to upcoming surgery. In a November 15, 2000 visit to Dr. McGrail, the employee expressed significant concerns about ongoing workplace friction, and reported she had arranged a mental health evaluation. The employee=s physical examination was essentially unchanged. On November 16, 2000, the employee retained an attorney to represent her in connection with her May 2, 2000 work injury.
In a return visit to Dr. McGrail on November 20, 2000, the employee agreed to a trial of Paxil for her depression. The doctor also increased the employee=s restrictions, limiting her to four hours of work per day, with no firm gripping, grasping or repetitive activity with either hand. The following day, Dr. McGrail referred the employee to the emergency room with complaints of left shoulder pain, chest and abdominal pain, and increased stress and anxiety. She reported all her symptoms related to workplace issues, and felt the employer was treating her unfairly because of her work injury. On November 22, 2000, Dr. McGrail took the employee off work due to the employee=s concerns about her emotional ability to return to work with the employer.
The employee was seen by a psychologist at Behavioral Health Services, Inc. (BHSI) in late November but from her perspective, the meeting did not go well. On December 4, 2000, the employee was evaluated by the emergency room crisis team at Dr. McGrail=s request. It was noted the employee had a long history of depression and suicidal ideation. The following day, the employee was seen in follow-up by Dr. Sijeda Baig, a psychiatrist at BHSI. The doctor diagnosed major depression and prescribed anti-depressant medication. The employee continued off work.
On December 14, 2000, the employee underwent surgery, performed by Dr. Zinberg, in the nature of an ECU release of the right wrist. Following the surgery, the employee was seen by Dr. McGrail on January 3, 2001. The doctor diagnosed right upper extremity pain, status post-ECU release, chronic pain syndrome and depression, and continued the employee off work. Dr. Baig saw the employee that same day. The psychiatrist stated the employee=s depression had improved with medication and, from a psychological perspective, she could return to work on January 4, 2001. The employee returned to Dr. McGrail for follow-up on January 8, 2001. Dr. McGrail believed the employee was physically able to return to work. He completed a work ability form releasing the employee to return to work on January 15, 2001 with restrictions of no use of the right arm and hand, no repetitive use of the left arm and hand, and no power gripping or pinching. The employee, however, maintained that a return to work with the employer would significantly exacerbate her depression and she refused to consider a return to work at the employer=s workplace. On January 10, 2001, the employee informed Dr. McGrail that she was pursing a vocational rehabilitation program on her own. She was advised to follow-up with the clinic as needed.
In December 2000, the employee told her attorney she no longer wanted his services. The attorney filed a notice of withdrawal from representation on December 28, 2000. On January 15, 2001, the employer and insurer served a notice of intent to discontinue benefits (NOID), contending the employee had been released to return to work, but had chosen not to accept the employer=s offer of light-duty work. The employee responded by letter received at the Office of Administrative Hearings (OAH) on February 8, 2001, objecting to the discontinuance of benefits and seeking an administrative conference.
The employee was seen by Dr. McGrail on January 17 and 23, 2001, complaining of continuing right wrist pain and left upper extremity pain. She attributed her left neck, shoulder, arm and hand problems to overuse as a result of her work injury. The employee was seen in follow-up by Dr. Zinberg on January 23, 2001, who noted some tenderness in the fifth finger of the right hand. She was directed to return for evaluation after completion of hand therapy. On January 29, 2001, Dr. McGrail met with the employee and her QRC to discuss work restrictions. The doctor had spoken with the employee=s Work Force counselor, and noted he was willing to meet with the counselor to discuss long-term recommendations once the employee was discharged by Dr. Zinberg.
On February 1, 2001, the employee filed a complaint with the EEOC, alleging that the employer had created a hostile, threatening and intimidating environment due to her work injury. This complaint was resolved by a settlement agreement on about April 5, 2001.
The employee returned to Dr. Zinberg on February 20, 2001. The doctor noted persistent tenderness at the ECU in the right wrist and a tender nodule in the right little finger. He recommended a trigger finger release. The employee was seen by Dr. McGrail the following day who noted persistent right wrist and left shoulder pain. The employee continued to see Dr. Baig and a therapist at BHSI, and to work with counselors at the Work Force Center. On March 7, 2001, Dr. McGrail completed a work ability form further limiting the employee to 20 hours of work per week.
In mid-March, the employee was referred to Dr. Benjamin, a hand surgeon, for evaluation of her right wrist and hand. On March 26, 2001, Dr. Benjamin noted swelling over the ECU tendon and triggering of the little finger. He recommended surgical reexploration of the right wrist along with a trigger finger release.
On March 29, 2001, an administrative conference was held before a compensation judge at the St. Paul Settlement Division of OAH. The employee asserted she did not return to work due to a hostile and stressful work environment. The judge found the employee=s request for an administrative conference was not timely, that he did not have jurisdiction to address the merits of the employee=s claim, and that the employer and insurer had properly discontinued temporary total disability benefits. The employee filed a letter objection to the decision on April 17, 2001, and a formal objection to discontinuance on April 25, 2001.
The employee was examined by Dr. Call, a hand surgeon, on April 30, 2001, at the request of the employer and insurer. Dr. Call concluded the employee had subjective symptoms only with a completely negative workup, negative surgery and no improvement. He found no objective abnormality with respect to the ECU, with a non-anatomic clinical examination. Dr. Call opined there was no objective evidence to substantiate the employee=s ongoing arm and shoulder complaints and no evidence of a trigger finger. He further opined the employee had reached maximum medical improvement (MMI), had no permanent partial disability, and needed no ongoing work restrictions. The insurer served Dr. Call=s MMI report on the employee on June 6, 2001.
On May 21, 2001, following a mediation session at the Department of Labor and Industry, an agreement was reached to settle the employee=s workers= compensation claims. On June 7, 2001, prior to execution of a written agreement, the employee underwent surgery consisting of a release and synovectomy of the dorsal compartment of the right wrist and a trigger finger release. On June 27, 2001, Dr. Benjamin released the employee to return to work with restrictions of no repetitive use of the right or left arm/ hand, and no power gripping or pinching. The doctor observed the employee could use her right hand for most activities, but needed to monitor use with respect to pain. The following day, June 28, 2001, the employee signed the Stipulation for Settlement. The stipulation provided for a full, final complete settlement, closing out all past, present and future workers= compensation claims related to the May 2, 2000 personal injury, except reasonable and necessary non-chiropractic, non-pain clinic and non-health club-related medical benefits, in exchange for a lump sum payment to the employee of $7,500.00. The stipulation was submitted to a compensation judge at OAH, and an Award on Stipulation, approving the settlement, was served and filed on July 5, 2001. On August 23, 2001, the employee served and filed a request to vacate the stipulation for settlement. The employer and insurer filed a timely objection to the petition. By letter dated October 24, 2001, the employee requested this court to stay consideration of the petition until Dr. McGrail provided permanent restrictions.
After issuance of the Award on Stipulation, the employee was seen at Regions Hospital on July 30, 2001 with complaints of right wrist and left shoulder pain, stating she was no better off following the surgery. Dr. McGrail=s previous restrictions were continued, and an appointment was scheduled with Dr. Schubert in the Regions hand surgery clinic as the employee did not want to return to Dr. Benjamin. An MRI scan of the left shoulder on August 9, 2001 was normal.
The employee returned to Dr. McGrail on August 27, 2001 reporting no improvement in her right hand/ wrist or left shoulder pain. The doctor recorded no significant findings on examination of the shoulder or wrist other than diffuse tenderness over the surgical incisions. Dr. McGrail indicated that if Dr. Schubert did not recommend additional intervention, it appeared the employee was at MMI. He continued the employee=s 20 hour work restrictions with a gradual increase in work hours anticipated. On October 31, 2001, Dr. Schubert released the employee from surgical follow-up. The doctor had no recommendations for further care, stating that future work restrictions would be provided by Dr. McGrail.
On November 6, 2001, Dr. McGrail provided new work restrictions of no lifting, carrying, pushing or pulling over 10 pounds, no power gripping or pinching, no use of the left arm above the shoulder, and avoidance of repetitive activities with the upper extremities. He increased the employee=s work hours to eight hours per day, three days a week, with one day of no work in between. Dr. McGrail further recommended a Functional Capacities Evaluation (FCE). An FCE was conducted by Saunders Therapy Centers in early December 2001. On December 19, 2001, Dr. McGrail indicated the employee was at MMI, had no permanent partial disability, and could work eight hours a day, five days a week, with restrictions including no lifting over ten pounds, no repetitive lifting over five pounds, and avoidance of forceful grasping, pushing/ pulling, or manipulation with the right hand.
This court may set aside an award on stipulation Afor cause@ pursuant to Minn. Stat. ' 176.461 and Minn. Stat. ' 176.521, subd. 3. ACause@ is limited to four grounds: a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition since the time of the award that was clearly not anticipated and could not reasonably have been anticipated at the time of the award. Minn. Stat. ' 176.461(4); Franke v. Fabcon, Inc., 509 N.W.2d 373, 376, 49 W.C.D. 520, 523 (Minn. 1993).
The employee alleges neither a mutual mistake of fact nor newly discovered evidence. Rather, the employee asserts she was taken advantage of and treated unfairly by the employer and insurer. She further alleges a substantial change or lack of improvement in her medical/vocational condition.
1. Misconduct/ Unfairness
The employee asserts that at the time of the stipulation, she did not have money, the bills were piling up, and she wanted to get as far away as she could from the lies, mistreatment and threats she had been subjected to by the employer and the insurer. She contends the employer and insurer took advantage of her, as she was under financial and emotional stress, was depressed and did not have a lawyer. She further alleges the claims adjuster threatened service of Dr. Call=s MMI report if she did not sign the stipulation.
Although the employee was not represented by counsel at the time of the stipulation, a lack of representation, without more, is not sufficient Acause@ upon which to vacate an award. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 41 W.C.D. 648 (Minn. 1989). The employee had previously had counsel but requested the attorney withdraw from representation. Although the employee was receiving, and continues to receive, treatment for depression, there is no evidence that the employee was not fully capable of entering into a contractual agreement at the time the stipulation was signed. Other than the claims adjuster=s alleged statement regarding service of Dr. Call=s MMI report, the employee presented no specifics of any threats or misconduct on the part of the employer and insurer relating to the stipulation for settlement. Rather, the employee=s assertions appear to relate to workplace friction documented well before the settlement agreement. Mere unsupported allegations of threats or misconduct, standing alone, do not establish good cause. Weaver v. Minneapolis Star and Tribune (W.C.C.A. Dec. 16, 1991). We further note the employer and insurer had a legal right to serve Dr. Call=s report on the employee and, in fact, did so before the employee signed the stipulation for settlement. Finally, that the employee may have been motivated by financial necessity or personal stress to enter into a stipulated settlement does not render the employee=s consent to the stipulated agreement ineffective. Croissant v. Merit Gage, Inc., slip op. (W.C.C.A. Feb. 3, 1994). Upon careful review of the record, there is simply no evidence of any fraud, coercion, threats or over-reaching of such significance as to void the award, and we decline to vacate the award on stipulation on such a basis.
2. Change in medical condition
To justify vacation of an award on the basis of a change in medical condition, the employee must provide evidence which establishes a substantial worsening in the employee=s condition or significant additional disability since the time of the settlement. Davis v. Scott Moeller Co., 524 N.W.2d 464, 466-67, 51 W.C.D. 472, 475 (Minn. 1994); Franke at 376-77, 49 W.C.D. 525. A number of factors may be considered in determining whether a substantial change has occurred, including a change in diagnosis, a change in the employee=s ability to work, additional permanent partial disability, the necessity of more costly and extensive medical care than anticipated, and a causal relationship between the work injury and the worsened condition. Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
The employee asserts that since the second surgery, just prior to the stipulation, her right hand/wrist condition has failed to improve. She contends that as a result of the work injury, she is also being treated for depression, an ulcer and left shoulder problems, all of which are a consequence of and causally related to her work injury. The employee maintains the work injury is permanent, and she may be restricted to light-duty work for a long time, or perhaps the rest of her life. She further asserts that although she is now working for Midwest Special Services, Inc., she is unable to make a living due to her restrictions and work injury. The employee argues that, contrary to the employer and insurer=s contentions, her current medical problems and the resulting work restrictions are new.
The employee=s medical condition and work restrictions may be Anew@ since the May 2, 2000 personal injury. However, the issue before this court is not whether these conditions are Anew@ since the employee=s work injury, but whether the employee has established a significant deterioration or substantial worsening of her medical condition since the stipulation for settlement that could not have been reasonably anticipated at the time of the award on stipulation.
The employee does not claim that the right hand and wrist condition has substantially worsened. Rather, she states it has remained the same since the stipulation for settlement. Nor is there any evidence of a change in diagnosis since the award on stipulation with respect to the right hand and wrist. Both surgeries to the right hand were completed by the time the employee signed the stipulation. Dr. Benjamin has since released the employee from surgical care, with no recommendations for further treatment.
Nor are the employee=s claims of consequential depression, an ulcer or left upper extremity problems anything new since the stipulation for settlement. The employee complained of gastrointestinal problems and concerns about left arm overuse as early as June 2000. By July 2000, Dr. Haber had provided work restrictions limiting the employee=s use of the left arm. On August 15, 2000, Dr. Paul diagnosed gastritis, likely related to NSAID use, and referred the employee to a psychologist, noting she was dealing with significant life stressors and had ongoing abdominal discomfort that appeared related to stress and her work injury. The employee continued to receive treatment for these problems, through the date of the stipulation for settlement in June 2001, asserting that her gastritis/ ulcer, depression and left hand, arm and shoulder complaints were a consequence of, and were causally related to, her work injury. There is no evidence of a substantial change in any of these conditions since the time of the award on stipulation.
Nor has there been any significant change in the employee=s ability to work since the award on stipulation. The employee has had significant work restrictions since the date of injury, and was never released to return to work without restrictions. In fact, the most recent work restrictions, submitted by the employee to this court, while still very limiting, are not significantly different from those of Dr. Benjamin following the second surgery, and are less stringent than the restrictions that had been imposed by Dr. McGrail prior to the stipulation for settlement.
In short, the employee has failed to establish a substantial worsening of her medical condition or significant additional disability since the time of the settlement We, therefore, deny vacation of the July 5, 2001 Award on Stipulation.
3. Medical expenses
In addition to the petition to vacate the award on stipulation, the employee also seeks payment of various medical expenses. Included in the documents submitted by the employee are medical statements and bills for treatment that appears to have been provided both prior to and after the settlement. Some of the medical expenses, which the employee claims were incurred for treatment related to her work injury, were paid by third-party medical insurers or payers. The stipulation for settlement closed out only non-medical benefits and left open reasonable and necessary medical expenses causally related to the employee=s injury. The medical bills may be submitted to the insurer for payment, or the employee may file a medical request.
 NSAID is an acronym for non-steroidal anti-inflammatory medications.