MICHAEL BRESNAHAN, Employee/Petitioner, v. VICORP/BAKERS SQUARE, and ROYAL SUN & ALLIANCE, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 27, 2006
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where there was no change in the employee=s ability to work or permanent partial disability, the change in the employee=s diagnosis was not necessarily significant, and the employer and insurer were paying for ongoing medical expenses related to the employee=s injury, and where the employee did not clearly establish that any change in his condition was not anticipated and could not reasonably be anticipated at the time of the settlement, good cause to vacate the award on stipulation was not established.
Petition to vacate denied.
Determined by: Wilson, J., Pederson, J., and Stofferahn, J.
Attorneys: Richard C. Lund, Law Offices of Donald F. Noack, Jr., Mound, MN, for the Petitioner. Laura L. Enga, Searls & Associates, Edina, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee petitions to vacate an award on stipulation based on a substantial change in condition. Finding no basis to vacate the award, we deny the petition.
The employee sustained a work-related injury to both elbows on September 15, 2002, or December 17, 2002, while working for Vicorp/Bakers Square [the employer]. The employer and its workers= compensation carrier admitted liability for the injury and paid temporary total disability benefits and medical expenses.
In 2004, the parties entered into a stipulation for settlement. At the time of the stipulation, the employee was contending that he was entitled to ongoing temporary total/temporary partial/permanent total disability benefits as well as permanent partial disability benefits for at least a 9% impairment of the body as a whole for each upper extremity. The employer and insurer admitted that the employee was currently entitled to temporary total disability benefits but alleged that Ahe will shortly be entitled to none@ and that he was entitled to no benefits for permanent partial disability. The stipulation for settlement provided that the employee would be paid $50,000 for a full, final, and complete settlement, with the exception of medical expenses causally related to the injury of September 15, 2002/December 17, 2002. An award on stipulation was filed on March 29, 2004.
On November 21, 2005, the employee filed a petition to vacate the award on stipulation on the basis of a substantial change in condition. In his affidavit attached to that petition, the employee=s attorney, Richard C. Lund, alleged that, as a result of his work injury, the employee has developed severe depression and anxiety, that he has been totally disabled for more than a year, that he has required intensive psychological and pharmacological treatment, and that his depression may render him permanently totally disabled. No memorandum of law was attached to the petition. The employer and insurer responded by asserting that there had been no substantial change in condition, in that the employee had already been diagnosed and treated for depression at the time of the settlement and had also been restricted from all work at that time.
A number of factors may be considered in determining whether an award should be vacated based on a substantial change in condition, including:
(a) a change in diagnosis;
(b) a change in the employee=s ability to work;
(c) additional permanent partial disability;
(d) the necessity for more costly and extensive medical care/nursing services
than initially anticipated; and
(e) the 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, 1060-61 (W.C.C.A. 1989).
At oral argument, the employee=s counsel contended that there has been a change in diagnosis, in that, while the employee had been diagnosed with depression at the time of the stipulation, he has since been diagnosed with major depression, anxiety disorder, and agoraphobia. The employee provided no medical records that were contemporaneous with the award on stipulation; however, the April 20, 2005, report of independent examiner Dr. John Hung, attached to the petition to vacate, provides a history of the employee=s prior medical treatment. Dr. Hung=s report indicates that, on February 13, 2004, Dr. Teresa L. Gurin diagnosed the employee with depression. On March 12, 2004, two weeks before the settlement, Dr. Gurin felt that the employee=s depression was complicating his functional recovery, and she recommended a psychological consultation and prescribed a medication for the depression. When Dr. Hung examined the employee on April 11, 2005, he diagnosed panic disorder with agoraphobia and major depressive disorder, single episode, severe. Dr. Hung went on to explain that his diagnosis of major depressive disorder was Abased on the presence of depressed mood, sleep disturbance, lethargy, diminished drive and lethargy, feelings of worthlessness, mental dullness and recurrent suicidal ideation.@ Those symptoms had been noted prior to the stipulation for settlement. The only change in diagnosis would be the addition of panic disorder with agoraphobia.
With regard to the issue of a change in the employee=s ability to work, the employee=s counsel argued at oral argument that the employee is now totally disabled from the psychological condition but that, at the time of the settlement, he was not. We are not persuaded that this constitutes a change in ability to work. The relevant comparison is between the employee=s current ability to work and his ability to work at the time of the settlement. The stipulation for settlement and Mr. Lund=s affidavit clearly establish that, at the time of the stipulation for settlement, the employee was claiming Aongoing temporary total/temporary partial/permanent total disability.@ In other words, the employee was claiming an inability to work at the time of the settlement, and he is apparently making the same claim now. In addition, the report of QRC Don Ostenson, dated March 30, 2004, and the office notes of Dr. Gurin and Dr. Edward Kelly indicate that the employee was totally disabled from working at least as of March 12, 2004. The October 10, 2005, letter of Dr. Najeeb Khan establishes that the employee was totally disabled from working as of that date. The fact that the specific cause of the employee=s total disability may have changed after the settlement is irrelevant to our analysis of this issue. There has been no change in the employee=s ability to work.
The employee concedes that there has been no increase in his permanent partial disability but contends there has been extensive psychiatric treatment that was not anticipated at the time of the stipulation. Dr. Khan=s letter establishes that the employee was taking medications, seeing a therapist, and joining a treatment group for his anxiety as of October 10, 2005, while, at the time of the settlement, his sole treatment was medications. We note, however, that the employer and insurer are apparently paying for the psychiatric treatment. Where medical expenses are not closed out by the award that the employee is seeking to vacate, this court will put less emphasis on an employee=s need for more costly and extensive medical care than initially anticipated. Burke v. F & M Asphalt, 54 W.C.D. 363 (W.C.C.A. 1996).
As for the question of causation, the parties agree that the employee=s psychiatric condition is causally related to his 2002 work injury.
To provide a basis for vacating an award issued on or after July 1, 1992, the change in the employee=s medical condition must clearly not have been anticipated and must not have been reasonably capable of anticipation at the time of the award on stipulation. Minn. Stat. '176.461. In this regard, the employee offers no evidence or medical support, other than to simply say that the change was not anticipated. However, the employee=s position is undercut by his admission that, at the time of settlement, he had been diagnosed with depression and had an outstanding request for a psychological consultation; by evidence indicating that his depression had progressed from February 13, 2004, to March 12, 2004, to the point that he had agreed to try medications; and by the fact that he applied for social security disability benefits, based at least in part on depression, approximately 36 days after the filing of the award on stipulation.
For all of the above reasons, we find that the employee has not established good cause to vacate the award on stipulation.
 The employer and insurer alleged that the injury date was September 15, 2002, while the employee alleged that the injury date was December 17, 2002.
 Minn. Rule 9800.1100, subp. 1, provides that an application to set an award aside Amust be accompanied by appropriate supporting affidavits, medical reports, and other documentary evidence, and by a memorandum of law.@
 Attached to the employer and insurer=s objection to the petition to vacate.
 At oral argument, Mr. Lund admitted that Athe sum and substance@ of the social security claim related to the employee=s depression.