WILLIAM R. BECKER, Employee/Petitioner, v. OLD CASTLE GLASS, INC., and LIBERTY MUTUAL INS. CO., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 4, 2009
VACATION OF AWARD. The employee failed to establish good cause to vacate two awards on stipulation and a findings and order on the grounds of a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in condition.
Petition to vacate awards on stipulation and findings and order denied.
Determined by: Johnson, C.J., Stofferahn, J., and Pederson, J.
Attorneys: William R. Becker, Pro Se Petitioner. Sarah D. Squillace, Bakken, Robinson & Grove, Golden Valley, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee petitions to vacate an Award on Stipulation filed April 3, 2006, an Award on Stipulation filed May 21, 2008, and Findings and Order filed December 1, 2008, on the bases of a mutual mistake of fact, newly discovered evidence, fraud, and a substantial change in medical condition. Concluding that the employee has not established good cause, we deny the petition.
William R. Becker, the employee, worked for Old Castle Glass, Inc., the employer, on June 4, 2002. On that date, the employee contended he sustained a personal injury arising out of his employment. The employer was then insured by Liberty Mutual Insurance Company.
In May 2004, the employee, through his attorney Frances Li, filed a claim petition seeking payment of wage loss benefits and medical expenses caused by a June 4, 2002, personal injury. The employer and insurer denied the employee sustained a work-related injury and denied liability for the claimed benefits.
Ms. Helen Algmin, a claims representative for Liberty Mutual Insurance Company, had previously scheduled an independent medical evaluation of the employee with Dr. Stephen Barron. By facsimile dated July 15, 2003, Ms. Algmin was sent medical records for a William Becker from Advanced Spine Associates, P.A., in Champlin, Minnesota. The fax references a “surgery report of 7/24/01.” The medical records attached to the July 15, 2003, fax apparently were destroyed and are no longer available for this court’s review. These records were, however, apparently furnished to Dr. Barron for his review in connection with his independent medical evaluation.
Dr. Barron issued a medical report dated November 11, 2003, directed to Ms. Algmin. In that report, the doctor stated that he reviewed “the medical records Ms. Algmin had provided me which included records from Allina Medical Clinic, NovaCare, and Buffalo Hospital.” The doctor stated that during the course of the evaluation he reviewed these records with the employee. Dr. Barron does not reference receipt or review of any records from Advanced Spine Associates, P.A. The doctor diagnosed healed sprains of the employee’s cervical spine, right shoulder, and right arm, secondary to the June 4, 2002, injury. The doctor opined the employee reached a healing plateau from this injury as of July 10, 2002. Dr. Barron stated the employee was capable of working on a full-time basis without limitations or restrictions, had no permanent partial disability, and opined that any treatment after July 10, 2002, was neither reasonable, necessary, nor related to the employee’s personal injury.
In March 2006, the parties entered into a settlement. The employee was represented by Ms. Li. The employee was then claiming entitlement to temporary total disability benefits from and after December 18, 2003, temporary partial disability benefits, permanent partial disability benefits, rehabilitation and retraining benefits, and medical expenses. The employer and insurer denied the employee sustained a personal injury arising out of his employment. Alternatively, they alleged the claimed June 4, 2002, personal injury was a temporary aggravation of a pre-existing condition which had fully resolved. The employer and insurer stated their claims and contentions were based, in part, on the November 11, 2003, report of Dr. Barron. The employee was paid $20,000 in exchange for a full, final, and complete settlement of all claims with the exception of future reasonable and necessary medical expenses. An Award on Stipulation was served and filed on April 3, 2006.
At some point, the insurer received an operative report from Unity Hospital dated July 13, 2006, for a William J. Becker. The report signed by Dr. Garry M. Banks reflects an operation at Unity Hospital in the nature of a revision of a left L4-5 and L5-S1 partial laminectomy with diskectomy. This report is date stamped as received on August 23, 2006. The insurer also received reports of two follow-up examinations of William J. Becker by Dr. Banks dated May 15 and October 12, 2006. These two reports were date stamped received on June 20, 2006, and January 10, 2007. The parties agree the William J. Becker reflected in these medical records is not the employee.
By letter dated May 31, 2007, a claims manager for the insurer wrote to the employee stating that medical treatment received after October 31, 2003, was not work-related and would not be paid. This denial was based upon Dr. Barron’s November 2003 medical report. In August 2007, the employee filed a Medical Request seeking payment of medical expenses at Allina Hospitals and Clinics and the Buffalo Hospital, together with medical mileage. In its Medical Response, the employer and insurer denied liability for the claimed expenses relying, in part, on Dr. Barron’s November 11, 2003, medical report. In a Decision and Order filed October 15, 2007, a mediator at the Minnesota Department of Labor and Industry concluded the disputed treatment was not causally related to the June 4, 2002, work injury. The employee was unrepresented at the Administrative Conference. The employee then filed a request for a formal hearing and retained Ms. Li to represent him at the hearing. Counsel for the employer and insurer states that at the January 8, 2008, hearing it was first brought to their attention that Dr. Barron had been provided with medical records of an individual with the same name as the employee, but who was not the employee. The scheduled hearing did not take place because the parties apparently resolved their dispute.
In 2008, the parties then entered into a second stipulation for settlement. The employee was represented by Ms. Li. To settle the claims, the employer and insurer agreed to pay certain medical expenses directly to the providers and agreed to pay to the employee the sum of $1,712.27 in settlement of his claim for reimbursement of medical expenses. The settlement agreement provided: “The Employer and Insurer mistakenly received medical records from Advanced Spine Associates, P.A., and Unity Hosp. for a patient named William Becker; the parties agree that this is not the same William Becker as the Employee discussed herein. The Employer and Insurer have removed from their files and destroyed the medical records obtained from Advanced Spine Associates, P.A. and Unity Hosp.” An Award on Stipulation was served and filed on May 21, 2008.
By letter dated June 3, 2008, counsel for the employer and insurer wrote the employee advising him of an independent medical evaluation with Dr. Richard Strand scheduled for August 6, 2008. By letter dated July 22, 2008, Ms. Squillace wrote to Dr. Strand stating the employee “is concerned that the records you will review for his Independent Medical Examination are for a different William Becker. There was an issue with the previous IME that this law firm mistakenly received medical records from a different individual and the IME doctor reviewed these records. Please allow Mr. Becker to review the medical records my office will send you that you will rely on for your opinions.” When the employee appeared for the medical examination by Dr. Strand on August 6, 2008, the doctor’s office provided the employee with a package containing the medical records provided to the doctor’s office. In reviewing these records, the employee discovered a document entitled “SKRA Patient Phone Call Report” dated February 26, 2004, for a patient K. N. The phone call report does not identify the name of the doctor or the clinic. The report documents a phone call between Dave, a case manager, and a nurse regarding medication issues of a patient, K.N. After finding this document in his medical records, the employee elected not to proceed with Dr. Strand’s examination.
Dr. Gary Wyard examined the employee on October 29, 2008, at the request of the employer and insurer. The doctor obtained a history from the employee and reviewed medical records from Sister Kenney Rehabilitation Center, Abbott Northwestern Hospital, Allina Medical Clinic, and NovaCare Rehabilitation. The employee does not contend that Dr. Wyard reviewed any medical records that were not of the employee. Following his examination, Dr. Wyard concluded the employee had no objective findings that could be directly attributable to the June 4, 2002, injury and stated the employee’s subjective complaints were out of proportion to the objective findings. Dr. Wyard rated no permanent disability, opined the employee had reached maximum medical improvement three months after the injury, concluded the employee was capable of working without restrictions, and stated the employee needed no additional medical care or treatment. Dr. Wyard stated medical treatment was reasonable for three months after the injury but thereafter was not reasonable or necessary.
Thereafter, the employee filed another claim for payment of medical expenses. The case was heard before a compensation judge at the Office of Administrative Hearings on November 5, 2008. The employee was unrepresented at the hearing. In Findings and Order filed December 1, 2008, the compensation judge found the employee sustained a personal injury on June 4, 2002, arising out of his employment in the nature of a myofascial pain syndrome affecting his back, neck, and right shoulder. The compensation judge ordered the employer and insurer to reimburse Allina Medical Clinic and Abbott Northwestern Hospital certain medical expenses and denied payment of other expenses. No party appealed from the compensation judge’s findings and order.
On March 9, 2009, the employee filed a Petition to Vacate an Award on Stipulation filed April 3, 2006, an Award on Stipulation filed May 21, 2008, and a Findings and Order served and filed December 1, 2008. The employer and insurer filed an Objection to the employee’s petition to vacate. On April 30, 2009, the employee filed with this court a discovery request seeking from the insurer and their legal counsel copies of various documents and medical records. In an Order for Discovery served and filed May 22, 2009, this court ordered the employer and insurer to provide to the employee copies of all of the employee’s medical records contained in their file, including copies of medical authorizations signed by the employee and copies of medical bills of the employee, and ordered the insurer to provide to the employee copies of all documents in their file, not otherwise privileged, relating to complaints made by the employee regarding the insurer’s handling of the employee’s claims. At the request of the employee, this case was scheduled for oral argument. The employee did not appear for the oral argument but Lowell J. Carlson appeared on his behalf. Mr. Carlson is not an attorney. At the oral argument, Mr. Carlson was permitted to present to the court factual statements regarding the employee’s petition to vacate, but was not allowed to make argument on behalf of the employee.
The employee seeks to vacate the awards on stipulation and findings of fact on the basis of a mutual mistake of fact, newly discovered evidence, fraud, or a substantial change in medical condition. Minn. Stat. §§ 176.461 and 176.521, subd. 3, govern this court's authority over petitions to vacate. An employee must show good cause for this court to vacate an award. Stewart v. Rahr Malting Co., 435 N.W.2d 538, 539, 41 W.C.D. 648, 649 (Minn. 1989). "Good cause" to vacate an award is limited to:
(1) a mutual mistake of fact;
(2) newly discovered evidence;
(3) fraud; or
(4) 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.
The employee submitted a large number of documents in support of his petition to vacate. These documents include pleadings; medical reports; letters from and to the insurer and its legal counsel; complaints to different agencies regarding the employer, the insurer, Dr. Strand, Dr. Barron, and Dr. Wyard; and letters, notes, and memoranda from the employee and Lowell Carlson. So far as we are able to discern, the employee asserts three bases for his contention that the awards on stipulation and findings of fact should be vacated: Dr. Barron erroneously relied on medical records of the wrong William Becker, Dr. Strand was provided with a medical record of a K.N., and the insurer fraudulently substituted the records from Unity Hospital and Dr. Banks in place of those originally attached to the July 15, 2003, fax to Ms. Algmin.
The insurer provided Dr. Barron with certain medical records of a different William Becker. The employee claims Dr. Barron reviewed and considered these records and contends the records formed a basis for the doctor’s opinions which the insurer used on several occasions to support its denial of the employee’s claims for benefits. He asserts Dr. Strand was improperly provided by the insurer with a nurse’s note of a telephone conversation regarding K.N., a person who is not the employee. In 2006 and 2007, the insurer received additional medical records from Unity Hospital and Advanced Spine Associates, P.A., regarding a second surgery of William J. Becker with two follow-up reports from Dr. Banks. These records are not of the employee. The employee contends the medical records originally attached to the July 15, 2003, fax from Advanced Spine Associates to Liberty Mutual were tampered with and replaced with the second operative report from Unity Hospital and the records from Dr. Banks. The employee contends the insurer knowingly provided to Dr. Barron and Dr. Strand medical records from persons other than the employee in order to wrongfully deny him workers’ compensation benefits. Based upon these facts, the employee contends he has established good cause to vacate the two awards on stipulation and the findings and order. We are not persuaded.
There is no dispute Dr. Barron received medical records of a different William Becker. The insurer states it requested medical records using authorizations signed by the employee containing his name and social security number. It claims a medical provider included records for a different William Becker. The only information we have about these records is that they came from Advanced Spine Associates and were identified as a surgical report of July 24, 2001. Dr. Barron, however, makes no mention of these medical records in his November 11, 2003, report. Rather, the doctor references only records from Allina Medical Clinic, NovaCare, and Buffalo Hospital and states that during the course of his evaluation, he reviewed these records with the employee. In the history obtained from the employee, Dr. Barron stated, “Mr. Becker has not had surgery or been hospitalized.” Dr. Barron stated in his report that he reviewed reports of a cervical and lumbar MRI scan together with numerous reports from the employee’s treating physicians. None of these medical records would have referred to a spinal surgery. Had Dr. Barron considered medical records of a July 24, 2001, surgical procedure, it seems likely he would have made mention of them in his report. It is reasonable to conclude Dr. Barron intentionally ignored these records since they were directly contradicted by the employee’s history and other medical records.
Dr. Barron concluded the employee’s June 2002 injury caused a sprain of the right shoulder, right arm, and neck that healed by July 10, 2002. By the date of his examination in November 2003, the doctor found the employee exhibited a normal orthopedic examination of the right arm and shoulder and the cervical, thoracic, and lumbar spine. These opinions are consistent with the opinions of Dr. Wyard in his October 2008 report. We find no basis to conclude the erroneous medical records furnished to Dr. Barron affected his medical opinions.
There is no dispute the insurer provided Dr. Strand with a medical record of a person other than the employee. The insurer contends a medical provider inadvertently included a nurse’s note for a patient K.N. along with Mr. Becker’s records. Prior to attending Dr. Strand’s medical examination, the employee was provided with and reviewed the records that were provided to Dr. Strand and discovered the nurse’s note of a telephone conversation regarding a K.N. Upon discovering this medical record in Dr. Strand’s file, the employee elected not to proceed with the independent medical evaluation. Since Dr Strand did not examine the employee or provide a medical report, we find no basis to conclude the insurer’s provision to Dr. Strand of the record of K.N. adversely impacted the employee’s entitlement to workers’ compensation benefits.
Finally, the employee contends the insurer knowingly and fraudulently provided to Dr. Barron and Dr. Strand medical records of persons other than the employee, bribed doctors to falsify their professional opinions and ordered them to use erroneous medical records, tampered with and altered the July 15, 2003, fax from Advanced Spine Associates to make it look like Dr. Barron could not have used the fax in his opinion and removed information from the July 15, 2003, fax and replaced it with later records from 2006. This conduct, the employee asserts, was designed to deny him workers’ compensation benefits. We are not persuaded.
We find no evidence that the insurer knowingly furnished the wrong medical records to either Dr. Barron or Dr. Strand, that the insurer intended the doctors rely on the wrong medical records, or that the doctors did rely on the wrong medical records. Equally importantly, we find no evidence that these mistakes affected the employee’s entitlement to workers’ compensation benefits. At best, we can only conclude that these were unintentional, unilateral mistakes of the insurer. We find no mutual mistake of fact or fraud as required by Minn. Stat. § 176.461.
The fact that Dr. Barron received medical records of a person other than the employee was first discovered on January 8, 2008, at a hearing before a compensation judge. The scheduled hearing did not take place and, thereafter, the parties entered into a second stipulation for settlement. Thus, there was evidence discovered subsequent to the April 3, 2006, award on stipulation that was unknown at the time of the settlement. The employee contends this newly discovered evidence justifies a vacation of the April 3, 2006, award and the May 21, 2008, award and the December 1, 2008, findings and order. The fact that Dr. Barron received the wrong medical records was known prior to the second settlement in May 2008, and prior to the December 1, 2008, findings and order. With respect to those two awards, the evidence was not newly discovered. To grant relief on the grounds of newly discovered evidence, the evidence must be such as to have had a probable affect on the outcome of the litigation. Gruenhagen v. Larson, 310 Minn. 454, 246 N.W.2d 565 (1976). We have previously concluded the July 2001 surgical report had no impact on Dr. Barron’s opinions. Accordingly, the employee’s request to vacate based on newly discovered evidence is denied.
Finally, the employee contends the awards on stipulation and the findings and order should be vacated based on a substantial change in medical condition. He contends that as a result of his personal injury he now has depression, symptoms in his right knee, and right plantar fascitis. In determining whether a substantial change in the employee's condition has occurred, this court in the past has examined such factors as:
(1) A change in diagnosis.
(2) A change in the employee's ability to work.
(3) Additional permanent partial disability.
(4) The necessity of more costly and extensive medical care/nursing services than initially anticipated.
(5) A causal relationship between the injury covered by the settlement and the employee’s current worsened condition.
(6) The contemplation of the parties at the time of settlement.
Fodness v. Standard Cafe, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989) (citations omitted). These factors must be applied in a manner consistent with Minnesota Statutes § 176.461 which requires the change be “clearly not anticipated and could not be reasonably anticipated at the time of the award.”
In the April 2006 settlement, the employee contended that as a result of his June 2002 personal injury he injured his neck, back, and right shoulder. In an unappealed finding in the December 1, 2008, findings and order, the compensation judge found that as a result of the June 4, 2002, personal injury, the employee sustained a myofascial pain syndrome, affecting his back, neck and right shoulder. We find no evidence the employee’s plantar fascitis has produced any disability, required any medical treatment, or was caused by the personal injury. The employee apparently alleges he sustained either depression or stress from dealing with the workers’ compensation system. The employee’s claims for medical treatment for these conditions were denied by the compensation judge in the December 2008 findings and order on the basis that the conditions did not result from the work injury. This findings and order was unappealed. The employee cannot collaterally attack these unappealed findings on causal relationship by alleging the same conditions have substantially worsened.
The employee has failed to establish any of the statutory grounds for vacation. Accordingly, the employee’s petition to vacate awards on stipulation served and filed on April 3, 2006, and May 21, 2008, and a findings and order filed December 1, 2008, is denied.
 The words “and Unity Hosp.” are hand written in the agreement and initialed by the parties.
 Apparently these records have since been destroyed and no party provided copies to this court. We assume these records relate to a spinal surgery since the later records of William J. Becker from Unity Hospital and Dr. Banks reference a revision of a left L4-5 and L5-S1 laminectomy.