BERDASTINE JEFFERSON, Employee/Appellant, v. GRIGGS COOPER and TRAVELERS INDEMNITY CO., Employer-Insurer, and MINNESOTA DEP’T OF LABOR & INDUS./VRU, MINNESOTA DEP’T OF HUMAN SERVS., and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 26, 2009
CAUSATION - CONSEQUENTIAL INJURY. Substantial evidence supports the compensation judge’s finding that the employee’s right knee condition was not a consequential injury, but was a direct result of her 2005 work-related injury.
SETTLEMENTS. The record supports the conclusion that the employee’s right knee condition was a subject of the dispute between the parties at the time of the settlement, and the compensation did not err in finding that the March 7, 2006, Award on Stipulation bars the employee’s claims for temporary total disability and rehabilitation benefits.
Determined by: Johnson, C.J., Stofferahn, J., and Pederson, J.
Compensation Judge: Gary P. Mesna
Attorneys: James K. Kohl, Hedback, Arendt, Kohl & Carlson, St. Anthony, MN, for the Appellant. Barbara L. Heck, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s findings that the employee did not sustain a consequential injury to her right knee and that the Stipulation for Settlement of March 2006 bars her claims for additional temporary total disability and rehabilitation benefits. We affirm.
Berdastine Jefferson, the employee, sustained a personal injury on June 22, 2005, arising out of her employment with Griggs Cooper, the employer, then insured by Travelers Indemnity Company. The employee was using a power operated pallet jack. She accidentally pushed a button that made the pallet jack proceed at a pace faster than she anticipated causing her to lose control, turn too sharply, and crash into a table with an oil barrel. The employee’s right leg was pinched between the table and the oil barrel.
The employee was initially seen at United Hospital on June 29, 2005. An x-ray of the right foot and ankle showed a comminuted fracture of the distal right fibula. The employee saw Dr. Charles Moser on June 30. On examination, the doctor noted a laceration over the lateral aspect of the employee’s leg. He reviewed the x-rays and agreed they showed a non-displaced fracture of the distal fibula. Dr. Moser dressed the laceration, placed the employee in a short-leg walking cast, and took the employee off work. On July 28, 2005, Dr. Moser reported the employee had minimal complaints of pain and on examination found mild stiffness in the ankle joint. The doctor stated the employee could discontinue the CAM walker, and prescribed a course of physical therapy. The employee returned to see Dr. Moser on August 18, 2005, complaining of some continuing lateral-sided discomfort with stiffness extending up to the knee. On examination, Dr. Moser noted a slight limitation of full dorsiflexion, mild soft tissue swelling, and no medial-sided tenderness or swelling. His diagnosis was post-lateral malleolar fracture. On September 8, 2005, the employee complained of continuing right ankle discomfort with an exacerbation of symptoms after prolonged standing at work. The doctor’s examination showed tenderness over the scar laterally with no significant soft tissue swelling, but pain at the extremes of motion. Dr. Moser recommended continued physical therapy and stated the employee could return to unrestricted activities as of September 26, 2005.
The employee then changed treating doctors to Dr. Mark Agre whom she first saw on September 28, 2005. The employee complained to Dr. Agre of right knee pain and neuropathic pain on the right lateral/anterior distal leg which the employee rated at 9 out of 10. The doctor reviewed the physical therapy notes and stated the employee’s therapist had on multiple occasions alerted Dr. Moser that “something else” was going on, that the employee had foot drop, neuropathic symptoms, and was not improving. Dr. Agre also noted the employee’s right knee and right ankle were bothering her with numbness in a common peroneal distribution in the right leg, the dorsum of the foot, and some plantar aspect numbness. On examination, the doctor noted the laceration scar at the point of the fibula fracture with numbness and tingling in both the deep and superficial peroneal distributions, weakness in the right foot, and difficulty with full right knee extension, flexion, hip flexion, abduction, and internal and external rotation. Dr. Agre stated he did not see an obvious ligamentous injury of the employee’s knee but the medial/lateral retinaculum were quite painful. The employee underwent an EMG study and returned to see Dr. Agre on November 2, 2005. The doctor stated the EMG study was consistent with an incomplete right common peroneal neuropathy. The doctor reported the employee was participating in physical therapy, using foot orthotics and a SWEDE-O brace, and was walking better. On November 30, 2005, the doctor’s diagnosis remained a fibular fracture and incomplete peroneal neuropathy. Dr. Agre continued the employee’s physical therapy for another month and continued her work restrictions at light duty, six hours per day, four days per week.
An Award on Stipulation was served and filed on March 6, 2006, approving the terms of a settlement between the parties for a personal injury to the employee’s right leg and/or ankle. The employee was then claiming she had continuing restrictions on her work activities entitling her to future periods of temporary total and temporary partial disability benefits, rehabilitation assistance, and permanent partial disability of the right leg and/or ankle. The employer and insurer contended the employee’s restrictions were temporary and she was not entitled to any further benefits. In exchange for a payment of $15,000.00, the employee settled all claims she had against the employer and insurer as a result of her June 22, 2005, injury with the exception of specified medical treatment.
The employee returned to see Dr. Agre on August 3, 2006. The doctor noted the employee had improved although her foot still had some very minimal numbness and pain with prolonged standing and walking. On examination, the doctor noted only very mild numbness in a superficial peroneal distribution. His diagnosis remained fibular fracture and common peroneal neuropathy.
On November 14, 2007, the employee saw Dr. Kelly Jewett at Open Cities Health Center who diagnosed osteoarthritis of the right knee. The employee returned to the clinic on December 7, 2007, complaining of chronic right knee pain. Dr. Fred Lewis diagnosed a degenerative right knee, post-traumatic by history.
The employee saw Dr. Joel Boyd at Tria Surgery Center on January 7, 2008, on referral from Dr. Lewis. The employee complained of right knee pain in the anterior and medial regions, stated her knee swelled, and had given out when walking or climbing stairs. Following an examination, the doctor noted the employee likely had a previous fracture of the medial tibial plateau, which had healed, and a peroneal neuropathy. Dr. Boyd ordered an MRI scan of the right knee that showed tricompartmental chondromalacia, some patella tilt, lateral patellofemoral chondromalacia, and a posterior medial meniscal tear. In February 2008, the doctor reported the employee complained of swelling and buckling in her knee and catching when trying to move her knee. The doctor recommended arthroscopic surgery to repair the meniscal tear.
Dr. Michael J. D’Amato examined the employee on March 3, 2008, at the request of the employer and insurer. The doctor diagnosed a right knee medial meniscal tear, a possible lateral meniscal tear, an old healed medial plateau fracture, and an injury to the right peroneal nerve. Dr. D’Amato opined the employee’s “objective and subjective complaints regarding her right knee injury and peroneal nerve injury are clearly consistent with the mechanism of injury occurring at work in June 2005, well documented throughout the records as being present at the timeframe around that injury and were clearly present in addition to the more obvious ankle injury that occurred at that time.” (Pet. Ex. B.) The doctor concluded there was a clear causal relationship between the June 22, 2005, work injury and the subsequent right knee condition and peroneal nerve injury. Accordingly, the doctor opined the proposed surgery was appropriate and causally related to the work injury.
In April 2008, Dr. Boyd performed a right knee arthroscopy for a partial medial meniscectomy. Following her surgery, the employee continued to treat with Dr. Agre. By report dated November 14, 2008, the doctor noted the employee had right knee pain at the time of his original assessment in September 2005 that could have been meniscal. Dr. Agre reported the employee’s right knee pain persisted, but was not as limiting as her neuropathic pain and weakness. The doctor stated that the employee’s knee was not restricting her activities, although she continued to have pain. Dr. Agre stated the need for the surgery was an extension of the employee’s original injury that was initially not a limiting problem, but progressed to the point where surgery was required. Dr. Agre opined the cause of the meniscal injury was the June 22, 2005, work injury.
The employee filed a claim petition alleging a consequential injury to her right knee and seeking temporary total disability benefits from and after February 8, 2008. Following a hearing, the compensation judge found the employee sustained no significant incident or injury from 2005 to 2008 that aggravated or injured her right knee, and found the employee’s right knee condition gradually and progressively worsened until she needed surgery. The compensation judge found the employee injured her right knee on June 22, 2005, had chronic knee pain thereafter, and the 2008 surgery was the result of the original injury and the natural progression of that injury. The compensation judge found the employee did not sustain a consequential injury to her right knee. Finally, the compensation judge found that the employee settled all claims for wage loss benefits arising out of her June 22, 2005, injury, and denied the employee’s claims. The employee appeals.
It is undisputed the employee’s June 22, 2005, personal injury was the cause of her right knee condition and need for surgery in 2008. Thus, the employee contends, she sustained a consequential injury and the compensation judge’s finding that she did not sustain a consequential injury is contrary to the facts and the law. Further, the employee argues, the stipulation for settlement does not bar her current claim because a settlement cannot foreclose consequential injuries or claims not contemplated by the parties at the time of the settlement. Accordingly, the employee argues the compensation judge’s decision denying her claims for benefits should be reversed.
The range of compensable consequences from a personal injury is, in Minnesota, typically discussed under the rubric of “consequential injury.” The concept of a consequential injury derives from a line of supreme court cases commencing with Eide v. Whirlpool Seeger Corp., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961). In Eide, the court held that where a permanently weakened physical condition caused by a personal injury is aggravated by an employee’s subsequent normal physical activities to the extent of requiring additional medical treatment, such treatment is compensable, so long as it could be said that the additional care was “a natural consequence flowing from the primary injury” and not the result of “unreasonable, negligent, dangerous, or abnormal activity on the part of the employee.” Id. at 49-50, 21 W.C.D. at 441. In Gerhardt v. Welch, 267 Minn. 206, 125 N.W.2d 721, 23 W.C.D. 108 (1964) the court, in again reviewing the issue of the range of compensable consequences from a personal injury, adopted the “direct and natural consequence rule” set forth at Larson, Workers’ Compensation Law, § 13.00, which stated:
When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to the claimant’s own negligence or misconduct.
The phrase “consequential injury” is misleading because it implies the employee sustained a new personal injury when, in fact, the claim typically is that the employee has some new, different, or worsened medical condition that is a natural consequence flowing from the original injury. In this case, the employee does not contend she sustained another personal injury. Rather she contends her right knee condition was unknown at the time of the settlement but was a natural consequence flowing from the original personal injury. There is no dispute that the employee’s knee condition and need for surgery in 2008 was a direct result and natural consequence of the 2005 personal injury. Whether or not the employee’s right knee condition might be termed a “consequential injury” is irrelevant and only obfuscates the real issue which is whether the award on stipulation bars any further claim for benefits arising out of the 2005 personal injury.
In Sweep v. Hanson Silo Co., 391 N.W.2d 817, 39 W.C.D. 51 (Minn. 1986), the supreme court held that a proposed stipulation for settlement was broader than statutorily permissible because it purported to close out claims for work-related injuries for which the “employee has made no claim based on such injuries and they were not a subject of dispute between the parties.” Id. at 822, 39 W.C.D. at 57. Following Sweep, this court in multiple cases has not permitted a settlement to foreclose claims not contemplated by the parties at the time of the settlement. In Fitzsimmons v. Alberta Gas Chems., Inc., slip op. (W.C.C.A. June 27, 1995), this court concluded that a stipulation that closed out all claims arising out of a 1982 injury did not bar a subsequent claim for benefits for a low back condition alleged to be due to the 1982 injury when the stipulation did not refer to a low back condition and described the injuries as being burns. In Fitzsimmons, the court stated, “A stipulation for settlement covers only those claims or rights that are specifically mentioned in the agreement.”
In this case, it is clear from the medical records that the employee had right knee complaints prior to the settlement. Admittedly, there was neither medical evidence of, nor a diagnosis of, a meniscal injury prior to the settlement. Dr. Agre stated the need for the knee surgery was an extension of the employee’s original injury that was not initially a limiting problem but progressed to the point where surgery was required.
The issue of whether the employee made any claim based on an injury to her knee and whether that was a subject of the dispute between the parties at the time of the settlement is a close question. That the employee would ultimately need knee surgery was apparently not known to the parties at the time of settlement. The parties were, however, aware the employee had knee pain and problems prior to the settlement. The compensation judge observed the parties were aware of the employee’s knee complaints at the time of the settlement and the settlement comprehensively closes out claims related to the “right leg.” The record supports the conclusion that injury to the employee’s knee was a subject of the dispute between the parties. Accordingly, we affirm the compensation judge’s finding that the March 6, 2006, Award on Stipulation bars the employee’s claim for benefits.
 See, e.g., Gates v. Costco Wholesale, No. WC04-201 (Jan. 14, 2005); Buske v. State, Dep’t of Human Servs., slip op. (W.C.C.A. Nov. 5, 1999); Golen v. J.C. Penney Co., slip op. (W.C.C.A. Oct. 27, 1993); Munkelwitz v. Bladholm Bros., slip op. (W.C.C.A. July 28, 1993).
 We take no position on the compensation judge’s suggestion that there may be grounds to vacate the settlement based on a substantial change in the employee’s medical condition since the time of the award under Minn. Stat. § 176.461.