DAVID I. BECKMAN, Employee/Petitioner, v. NORTHSIDE CONSTR. and AMERICAN STATES INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 1, 2004
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Because the employee submitted the documentation that was missing in his first petition to vacate, and because the question of causation is not entirely clear, the matter is referred to the Office of Administrative Hearings for an evidentiary hearing and factual findings on the factors specified in Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989). Pending claims for subsequent work injuries do not make a petition to vacate premature where success in litigation related to the subsequent injuries will not allow the employee to make a full recovery of benefits.
Referred to the Office of Administrative Hearings.
Determined by Wilson, J., Johnson, C.J., and Pederson, J.
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Ltd., Minneapolis, MN, for the Employee/Petitioner. Karen R. Swanton, David Nirenstein, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to vacate an award on stipulation based on a substantial change in condition. We refer the matter to the Office of Administrative Hearings for an evidentiary hearing on the Fodness factors.
The employee sustained a work-related injury to his head on April 22, 1987, while employed by Northside Construction [the employer]. The head injury included a left supra-orbital skull fracture, and the employee had headaches and vision and sinus problems thereafter. In 1989, the employee entered into a full, final, and complete settlement of all past, present, and future claims, with the exception of Afuture medical expenses for any organic-related treatment which is causally related to the personal injury.@ The employee was paid $11,000 under the stipulation, which specifically foreclosed Amedical treatment not related to organic problems, i.e., treatment by osteopathy, or chiropractors, any mental or emotional, psychological or psychiatric-type treatment (including pain clinics).@ An award on stipulation was filed on January 5, 1990.
The employee commenced family therapy with a mental health practitioner sometime before January of 1995. In October of 1995, following a psychiatric evaluation, the employee was diagnosed as having a major depressive disorder, pain disorder associated with a medical condition, personality disorder, chronic headaches, and psychosocial stressors. A neuropsychological evaluation was performed by Dr. Thomas Will on December 4, 2000. Dr. Will reported that the employee=s Adifficulties with anger control, as well as personality changes and mood swings, may be secondary to a prefrontal lobe syndrome,@ further indicating that the employee=s Amost problematic difficulties, which are behavioral in nature, may be the results of a prefrontal lobe syndrome as a consequence of his traumatic brain injury.@
In February of 2001, the employee petitioned to vacate the 1990 award on stipulation based on a substantial change in condition. In a decision filed on November 28, 2001, this court denied the petition, stating,
The current record is inadequate for us to determine whether there has been a change in diagnosis since the issuance of the award on stipulation. Had there also been evidence of a change in ability to work, increased permanent partial disability, and/or increased medical expenses, we might have remanded the matter to the Office of Administrative Hearings for findings on the change in diagnosis issue.
On March 5, 2003, the employee filed a claim petition alleging underpayment of temporary total disability benefits after June 29, 2002, related to a work-related low back injury occurring on August 30, 2001, while the employee was employed by Riesgraf=s Installation Company, Inc. An amended claim petition was filed on January 26, 2004, adding a claim for permanent total disability benefits continuing from June 29, 2002. That claim petition listed two additional employers, including Northside Construction.
On January 27, 2004, the employee filed another petition to vacate the January 5, 1990, award on stipulation. Attached to the petition were bills from Family Services of St. Croix and FamilyMeans, where the employee had received counseling, and an October 24, 2002, report of Dr. Steven S. Lebow, who rated the employee as having a 20% whole body impairment. The employer and insurer object to the petition.
The employer and insurer first contend that the employee=s petition to vacate is premature. We are not persuaded.
The employer and insurer cite several cases for the proposition that a petition to vacate is premature where litigation is pending for injuries other than those settled out by the award on stipulation. In each of those cases, however, the employee had the potential of receiving full recovery, for all claimed benefits, from employers and insurers on the risk for subsequent injuries. In the instant case, the injury settled out by the award on stipulation was an injury to the head. The employee claims to have sustained a permanent partial disability of the brain and seeks reimbursement for psychiatric/psychological counseling related to that brain injury. This claimed medical treatment preceded the subsequent claimed work injuries, and those subsequent injuries are injuries to the low back. As such, even complete success in claims against the subsequent employers and insurers will not allow the employee to recover these permanent partial disability benefits and medical expenses. For that reason, the employee=s petition to vacate is not premature.
In our decision of November 28, 2001, on the employee=s previous petition to vacate, this court noted that we might have remanded the matter to the Office of Administrative Hearings for findings on change of diagnosis but for the fact that the employee had provided no evidence of wage loss, additional permanent partial disability, or unpaid medical expenses causally related to the 1987 injury. We went on to state that A[w]e will not vacate an award on stipulation unless there is a reason to do so.@ The employee has now provided a medical report that suggests additional permanency related to the 1987 work injury and has provided some medical bills and medical records reflecting psychological/psychiatric treatment that was closed out by the award on stipulation. Accordingly, as the employee has provided the documentation that was missing from the first petition to vacate, and as medical opinions are less than clear as to the causal relationship of the alleged permanency to the 1987 work injury, we refer this matter to the Office of Administrative Hearings for an evidentiary hearing on the Fodness factors. Specifically, the compensation judge should address what the employee=s current diagnosis is, whether that diagnosis constitutes a change from the employee=s diagnosis at the time of settlement, whether there has been a change in the employee=s ability to work, whether there has been additional permanent partial disability, whether there has been more costly and extensive medical care than initially anticipated, and whether there is a causal relationship between the injury covered by the settlement and the employee=s current condition. After findings have been made, the matter should be returned to this court for final determination on the employee=s petition to vacate.
 Fodness v. Standard Café, 41 W.C.D. 1054 (W.C.C.A. 1989).
 Kinnunen v. Brockway Glass, slip op. (W.C.C.A. Jan. 27, 2000); Wright v. Minnesota Vikings Football Club, Inc., slip op. (W.C.C.A. Mar. 7, 2003); and Niesen v. Brigham Jennifer Group, Inc., slip op. (W.C.C.A. Dec. 11, 2001).
 In their brief, the employer and insurer also contend that the employee=s condition has not changed since the last petition to vacate and that the employee=s claims are therefore barred by the principle of collateral estoppel. This court does not generally apply collateral estoppel to petitions to vacate and declines to do so now.