ARMAN A. HANIFF, Employee/Petitioner, v. WIRSBO CO. and LIBERTY MUT. INS. CO., Employer-Insurer, and SKYLINE CHIROPRACTIC, EMERGENCY PHYSICIANS, P.A., APPLE VALLEY MED. CTR., SUBURBAN RADIOLOGICAL CONSULTANTS, MINNESOTA DEP’T OF HUMAN SERVS., MINNESOTA DEP’T OF LABOR AND INDUS./VRU, MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., HEALTHPARTNERS, FAIRVIEW HEALTH SERVS., CENTER FOR DIAGNOSTIC IMAGING, REGIONS HOSP., GALVIN REHAB. SERVS., and BLUE CROSS BLUE SHIELD OF MINN., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 2, 2012
VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION. Where the employee claimed only an injury to his abdomen and low back at the time of the stipulation for settlement and made no claim for any cervical injury, the employee’s cervical condition that was the basis for his petition to vacate was not a subject of dispute at the time of settlement and was not closed out by the stipulation making vacation of the award unnecessary.
Petition to vacate award on stipulation denied.
Determined by: Johnson, J., Milun, C.J and Hall, J.
Attorneys: Joshua R. Stokka, Arechigo & Stokka, St. Paul, MN, for the Petitioner. Craig B. Nichols and Joan G. Hallock, Hanson, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee petitions to vacate an Award on Partial Stipulation, served and filed September 23, 2008, on the basis of a substantial change in medical condition. Concluding the employee has not established good cause, we deny the petition.
Arman A. Haniff, the employee, sustained a personal injury on October 5, 2005, while employed by Wirsbo Company, the employer, then insured by Liberty Mutual Insurance Company. The employer and insurer admitted liability for the employee’s personal injury.
Following his injury, the employee sought treatment at the Apple Valley Medical Center where he was diagnosed with an abdominal muscle strain. On October 16, 2005, the employee went to Fairview Ridges emergency room complaining of back pain and abdominal pain. A cervical MRI scan showed a central disc protrusion at C5-6 without nerve root impingement. Thoracic and lumbar MRI scans were negative.
In November 2005, Dr. Tilok Ghose examined the employee at the request of the employer and insurer. The employee told the doctor that on October 5, 2005, he was pulling on a box of coiled pipe when a box fell on his abdomen, causing him to fall backwards with the box onto the floor. On examination, Dr. Ghose found no muscle spasm or limitation of motion, but noted a marked degree of functional magnification of symptoms. Dr. Ghose concluded the employee sustained a resolved soft tissue strain of the abdominal musculature, and opined the employee could return to work without restrictions or limitations.
The employee received treatment from Dr. David Yearling at Skyline Chiropractic from December 2005 until July 2006 with only temporary relief of his symptoms. In July 2006, the employee began treatment with Dr. John Stark, an orthopedic surgeon. The doctor ordered a therapeutic and diagnostic left sacroiliac joint athrography and injection. In his report of February 9, 2007, Dr. Stark stated, “the employee’s history has been quite consistent with pain over the posterior-superior iliac spine.” Dr. Stark diagnosed left sacroiliac pain and recommended a left sacroiliac fusion.
Dr. Paul Cederberg, an orthopedic surgeon, examined the employee in July 2007 at the request of the employer and insurer. The doctor diagnosed a resolved left abdominal contusion and low back pain of unknown etiology. The doctor stated the employee’s October 5, 2005, personal injury resulted in a temporary abdominal injury that resolved within one month. Dr. Cederberg noted the employee had no objective findings on any type of scan or examination suggestive of any low back injury. Rather, the doctor stated the employee demonstrated multiple inconsistencies on examination and opined the employee was malingering. Dr. Cederberg stated the October 5, 2005, personal injury was not a substantial contributing cause of the employee’s current low back condition. The doctor concluded that the employee could return to work without restrictions and required no further medical care or treatment.
Following Dr. Cederberg’s examination, the employee underwent fusion surgery. The employee then filed a claim petition seeking benefits resulting from a low back injury on October 5, 2005. In their answer, the employer and insurer alleged the employee’s work injury was limited to an abdominal strain that had fully resolved. The parties ultimately settled their claims and entered into a Stipulation for Partial Settlement. In the settlement document, the employee contended that on October 5, 2005, he sustained an injury to his abdomen and low back. The employer and insurer denied the employee sustained any cervical, thoracic, or lumbar spine injury and asserted the employee sustained only a temporary injury to his abdomen. In exchange for a lump sum payment of $52,500.00, the employee settled all claims for benefits for all “injuries to the abdomen, cervical, thoracic and lumbar spine on or about October 5, 2005, including any and all consequential injuries the Employee may have sustained or alleges to have sustained while employed with the Employer.” The settlement included claims for future medical care related to the abdomen and the cervical, thoracic and lumbar spine. An Award on Partial Stipulation was served and filed on September 23, 2008.
In November 2009, the employee sought treatment with Dr. Angel Ruiz in the Bronx, New York. The employee gave a history of a spinal fusion in 2007, secondary to a work injury, and reported that for the past nine months he had been experiencing radiating pain from his neck to his low back with numbness in his right arm. In December 2009, the employee was examined by Dr. Joshua Auerbach, again complaining of neck and arm pain. The doctor ordered an MRI scan that showed a large C5-6 disc herniation impinging on the C6 nerve root. Dr. Auerbach recommended an anterior cervical discectomy at C5-6, which was performed in April 2010.
In March 2012, the employee filed with this court a petition seeking to vacate the Award on Partial Stipulation, filed September 23, 2008. The employer and insurer ask this court to deny the employee’s petition.
The employee seeks to vacate an award on stipulation on the basis of 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 includes “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 (4). Cause sufficient to justify setting aside an award on the grounds of a change in medical condition exists where there is evidence of a substantial deterioration in the employee’s condition or significant additional disabilities since the time of the settlement and a showing of a causal relationship between the injury covered by the award and the employee’s present condition. Davis v. Scott Moeller Co., 524 N.W.2d 464, 51 W.C.D. 472 (Minn. 1994).
Prior to the settlement, the diagnosis of Dr. Stark was left sacroiliac pain for which the employee underwent fusion surgery. Since the time of the settlement, the employee asserts that his cervical condition has worsened necessitating a cervical discectomy at C5-6. The employee contends that the worsening of his cervical condition constitutes a substantial change in his medical condition that was not anticipated at the time of the settlement. Accordingly, the employee argues the award should be vacated. The respondents contend the medical records document that the employee had a C5-6 disc protrusion prior to the settlement. Although the employee was aware that he had cervical spine problems prior to the settlement, the employee did not allege that he injured his cervical spine on October 5, 2005. This is not a change in diagnosis, the respondents argue, but a completely new and unrelated diagnosis, which is not a basis for vacating the stipulation. We agree.
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 purporting to close out claims for certain work-related injuries was broader than statutorily permitted because 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. 57. Following Sweep, this court has in multiple cases stated that a settlement may not 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 held 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.”
The medical records document that the employee had cervical complaints and a C5-6 disc protrusion prior to the settlement. It is clear from the stipulation, however, that the employee claimed only an injury to his abdomen and low back on October 5, 2005, and made no claim based on any cervical injury. The employee’s cervical condition was not, therefore, a subject of dispute between the parties at the time of the settlement. Pursuant to Sweep, the September 23, 2008, Award on Partial Stipulation does not close out claims for benefits causally related to the employee’s cervical condition. Since those claims remain open, it is not necessary to vacate the award. The employee’s Petition to Vacate Award is denied.
 See, e.g., Gates v. Costco Wholesale, No.WC04-201 (W.C.C.A. Jan. 14, 2005); Buske v. State, Dep’t of Human Servs., slip op. (W.C.C.A. Nov. 5, 1999); Golen v. J.C. Penny Co., slip op. (W.C.C.A. Oct. 27, 1993); Munkelwitz v. Bladholm Bros., slip op. (W.C.C.A. July 28, 1993).