MICHAEL SMASAL, Employee/Petitioner, v. AEROTEK, INC., and RELIANCE NAT=L INDEM. INS. CO./MIGA/GALLAGHER BASSETT SERVS., INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 1, 2002
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there was no evidence that the change in the employee=s right upper extremity condition was unanticipated, and where an alleged low back injury had not been adjudicated to be work-related, the employee failed to establish good cause to vacate based on substantial change in his medical condition.
Petition to vacate award denied.
Determined by Wilson, J., Stofferahn, J., and Pederson, J.
DEBRA A. WILSON, Judge
The employee petitions to vacate awards on stipulation filed on May 9, 1996, and September 18, 1996, based on a substantial change in medical condition. Finding no basis to vacate the awards, we deny the petition.
The employee sustained an admitted work-related injury to his right elbow and right wrist on March 17, 1995, while working for Aerotek, Inc. [the employer]. The employer and its workers= compensation insurer paid temporary total disability benefits from March 31, 1995, to April 5, 1995, and from May 24, 1995, until the stipulation for settlement in September of 1996. On January 15, 1996, the employee underwent a submuscular ulnar nerve transposition, distal radial ulnar joint arthroplasty, and re-routing and reconstruction of the distal extensor carpi ulnaris sheath, performed by Dr. Mark Fischer. The employee followed up with Dr. Fischer on January 23, 1996, and office notes for that date indicate that Dr. Fischer talked to the employee about the possibility of an ulnar shortening if the January surgery did not relieve his pain.
In April of 1996, the employee and employer entered into a stipulation for settlement wherein the employee accepted $11,000.00 in full, final, and complete settlement of all past, present, and future claims for rehabilitation and retraining benefits. The stipulation indicated that it was the employee=s intention to begin employment as a private investigator. The award on stipulation was filed on May 9, 1996.
On August 9, 1996, the employee returned to Dr. Fischer complaining of numbness in the fingers and persistent ulnar-sided wrist pain. Dr. Fischer=s office notes state that A[w]e talked about the possibility of proceeding with an ulnar shortening if it fails to resolve. I will see him back in three months and we will make a final decision on whether to proceed with ulnar shortening at that time.@ The employee did not return to Dr. Fischer in three months.
In September of 1996, the employee and employer entered into a stipulation for settlement. According to the agreement, the employee was claiming entitlement to ongoing temporary total disability benefits, temporary partial disability benefits in the future, permanent partial disability benefits up to 19% of the body as a whole, and payment of outstanding medical expenses. Pursuant to the terms of the stipulation, the employee was paid $70,000.00 in full, final, and complete settlement of any past, present, or future claims related to the work injury. However, medical benefits for the right upper extremity were left open. The award on stipulation was filed on September 18, 1996.
On April 18, 1997, the employee returned to Dr. Fischer with persistent radioulnar joint dysfunction. Dr. Fischer recommended ulnar shortening.
On April 15, 1998, the employee filed a claim petition alleging a back injury on March 17, 1995, in addition to the admitted right upper extremity injury. The employer answered, denying primary liability and affirmatively alleging that the employee had failed to give timely notice of the alleged back injury. That claim petition is pending at the Office of Administrative Hearings.
On February 6, 2002, the employee filed a petition to vacate the two awards on stipulation, based on substantial change in medical condition. The employer objected.
The employee petitions to vacate the awards on stipulation based on 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. See Minn. Stat. ' 176.461. This court analyzes substantial change in medical condition cases in light of the Fodness factors:
(1) a change in diagnosis;
(2) a change in the employee=s ability to work;
(3) additional permanent partial disability;
(4) necessity of more costly and extensive medical care/nursing services than initially anticipated;
(5) causal relationship between the injury covered by the settlement and the employee=s current worsened condition.
Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A.1989).
The employee has submitted no evidence of a change in diagnosis of the right upper extremity. He also has not submitted evidence of a change in ability to work related to the right upper extremity. The employee was not working at the time of the stipulation for settlement, and the employee is not working now. There is no evidence that any doctor has placed additional restrictions on the employee, relative to his right upper extremity, which would affect his employability. At oral argument, employee=s counsel also admitted that no additional permanency has been rated as it relates to the right upper extremity.
The employee=s primary argument, with regard to the right upper extremity, appears to be that the employee did not understand that he was going to have the problems he subsequently had with the right upper extremity or that he was going to need the surgery recommended by Dr. Fischer. We are not persuaded. Dr. Fischer=s office notes from before the settlement reflect that he had anticipated that the employee would need an ulnar shortening and that he had discussed that possibility with the employee. This is the same surgery that Dr. Fischer has recommended post-stipulation. In addition, the progress notes of the employee=s QRC reflect that on August 9, 1996, the QRC was present at the exam with Dr. Fischer and that the doctor had Adiscussed the possibility of further surgery on the right arm.@ Thus, the employee has not established a substantial change in the right upper extremity that was not anticipated or could not reasonably have been anticipated.
The employee also contends that his condition has substantially worsened since the time of the awards on stipulation as a result of his low back problems. He has had surgery on his back since the time of the awards on stipulation and contends that he is now totally unable to work as a result of both the right upper extremity injury and the alleged low back injury.
We note initially that a back injury was not claimed at the time of the awards on stipulation and that the stipulations did not close out any claims for an alleged injury to the back. In addition, generally, an alleged injury to a body part not claimed or denied at the time of a stipulation for settlement is not relevant to a petition to vacate that stipulation. Connell-Wandrick v. Golden Age Health Care Ctr., slip op. (W.C.C.A. Jan. 2, 2001). In this case, we decline to consider the alleged back injury for purposes of deciding whether the criteria for vacation have been satisfied. The employee=s petition to vacate is therefore denied.