GARY L. KINNEY, Employee/Petitioner, v. U.S. STEEL, SELF-INSURED, Employer.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 15, 2005
VACATION OF AWARD - VOID AWARD; VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION; VACATION OF AWARD - MISTAKE. Where there was no medical support for a claim of substantial change in condition, and the employee did not establish either incompetence or mistake with regard to the terms of the settlement agreement, good cause to vacate the award was not established.
Petition to vacate denied.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Attorneys: Dean M. Salita, Brabbit & Salita, Minneapolis, MN, for the Petitioner. Michael I. Cohen, Orman Nord & Spott Law Office, Duluth, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to vacate an award on stipulation filed on May 17, 1999. Finding insufficient basis to vacate, we deny the petition.
The employee sustained a work-related injury to his lumbar spine on January 2, 1990, while working for USX Corporation [the employer], which was self-insured for workers= compensation purposes. He sustained a temporary aggravation of his lumbar condition on or about January 22, 1996, as a consequence of the 1990 injury. The employee subsequently underwent surgery for a herniated disc. The employer paid medical expenses, temporary total disability benefits from February 2, 1990, to November 17, 1990, and from January 22, 1996, to February 3, 1996, and impairment compensation for an 11% permanent partial disability.
By 1997 the employee was being treated for sleep apnea, and an August 1997 sleep study also revealed Afrequent leg movements.@ In December of 1998, Dr. David McKee diagnosed the employee with idiopathic restless leg syndrome/PMS. On December 10, 1998, Dr. McKee opined that he did not think that a causal relationship between the employee=s back problems and his leg movements could be established. Various medications were attempted to treat the employee=s symptoms.
The employee apparently filed a claim with the employer for benefits related to these conditions, and, on February 1, 1999, the employee was examined by independent medical examiner Dr. David L. Camenga. In his report following that exam, Dr. Camenga opined that the employee=s obstructive sleep apnea was not work-related, but he felt that it would not be unreasonable to consider that Athe restless legs syndrome, the periodic movements of sleep, the interrupted sleep, the impaired rapid eye movement sleep indicative of dreaming, may be related to the back injury.@ Dr. Camenga also recommended that the employee be seen by a psychiatrist with regard to the possible issues of post-traumatic stress related to his work injury and Apossible untreated depression and irritability related to both ongoing inefficient sleep and that episode.@
In April of 1999, the parties entered into a stipulation for settlement. The employee was not represented by counsel. According to the stipulation, the employee contended that he had been temporarily totally disabled continuing from September 3, 1998,
as a result of Restless Leg Syndrome (ARLS@) and/or associated Periodic Limb Movement Syndrome and anxiety/psychological distress which affect his sleep pattern, and aggravate his preexisting sleep disorder (apnea), causing him to feel drowsy during the normal work day and preventing him from performing the essential duties of his job as a track and rail department team leader.
Pursuant to the stipulation, the employer paid $10,000 for
a full, final and complete settlement closing out any and all claims of the employee for temporary total and temporary partial wage loss benefits arising out of the alleged and disputed Restless Leg Syndrome, Periodic Limb Movement Syndrome, anxiety and/or psychological distress, and sleep apnea claims, which is the extent of the dispute herein.
Under paragraph VII. of the stipulation, the employee wrote Ayes@ and initialed in response to the question, AIs it your belief and understanding that this Stipulation for Settlement is final and binding as to any claims arising out of your alleged Restless Leg Syndrome, Periodic Limb Movement Syndrome, anxiety and/or psychological distress, and sleep apnea, even if these conditions become substantially worse than they are now?@ An award on stipulation was filed on May 17, 1999.
The employee filed a petition to vacate the award on stipulation on February 1, 2005, alleging that good cause exists to set aside the award for the following reasons: he was not represented by counsel when he entered into the stipulation for settlement; he has undergone a substantial change in his medical condition; and he did not understand the agreement he was entering into.
The employee=s first argument for vacation is premised on the fact that the employee was not represented by counsel when he entered into the stipulation for settlement. However, it is well established that lack of counsel alone does not provide sufficient basis for vacation of an award. Loken v. Marvin Lumber & Cedar, slip op. (W.C.C.A. Dec. 19, 1991).
The employee=s second basis for vacation is substantial change in condition. However, at oral argument, counsel for the employee admitted that he had no medical support for this claim.
The employee=s third basis for requesting that the award on stipulation be vacated is that he did not understand the agreement he was entering into. Where an employee lacks competency to enter into a stipulation for settlement, the contract is null and void. Bernard v. Marvin Lumber, 41 W.C.D. 512 (W.C.C.A. 1988). However, the employee has provided us with no evidence that would establish incompetency or lack of legal capacity, instead alleging in his affidavit that he understood the agreement to state Athat future claims relating to my lumbar spine, restless leg syndrome/periodic limb movement syndrome, sleep apnea and anxiety were to remain open.@ Given the clear language of the settlement agreement, the employee=s mere unsupported allegation in this regard is insufficient to justify vacating the award on grounds of either incompetency or mistake. Accordingly, we deny the employee=s petition.