DAVID A. NICKERSON, Employee/Petitioner, v. PLANESMAN CONSTR. and TRAVELERS GROUP, Employer-Insurer, and BLUE CROSS BLUE SHIELD OF MINN., Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 4, 2012
VACATION OF AWARD. In 1984, the employee sustained a significant injury to his low back with Planesman Construction, insured by Travelers Group, which he settled in 1986. The employee then sustained two Gillette injuries, in 2005 and 2010, arising from his employment at Black’s Greenhouse, a family corporation for which workers’ compensation coverage was not statutorily mandated and was not elected. Where an employee has no claim against the subsequent employer and no potential of receiving full recovery for claimed benefits from the employer on the risk for subsequent injuries, the principles enunciated in Johnson v. Tech Group, Inc., 491 N.W.2d 287, 47 W.C.D. 367 (Minn. 1992) and Kinnunen v. Brockway Glass, slip op. (W.C.C.A. Jan. 27, 2000), are not applicable. As the employee otherwise meets the statutory requirements, vacation of the 1986 award on stipulation is granted.
Petition to vacate award on stipulation granted.
Determined by: Johnson, J., Stofferahn, J., and Milun, C.J.
Attorneys: William H. Getts, Zimmerman, MN, for the Petitioner. Barbara L. Heck, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee petitions to vacate an award on stipulation served and filed July 21, 1986, on the basis of a substantial change in medical condition. Concluding the employee has established good cause, we grant the petition.
David A. Nickerson, the employee, sustained a personal injury to his low back on November 13, 1984, arising out of his employment with Planesman Construction. The employer and Travelers Group, its insurer, accepted liability for the employee’s injury.
Following his injury, the employee received care from Dr. Richard Gregory, a neurosurgeon, who performed a L5-S1 laminectomy in December 1984. Thereafter, the employee developed recurrent pain in his low back and right leg and in May 1985, Dr. Gregory performed a second laminectomy at L5-S1. By April 1996, Dr. Gregory opined the employee had reached maximum medical improvement, rated him with a 15% whole body disability, and released the employee to return to work subject to restrictions.
The parties then reached a settlement of various disputes. In exchange for a payment of $16,000, the employee agreed to settle all claims on a full, final, and complete basis with the exception of reasonable medical expenses necessary to treat the November 13, 1984, injury. An award on stipulation was served and filed on July 21, 1986.
Following the settlement, the employee attended college and obtained a degree in agriculture in 1992. The employee then joined his wife in running Black’s Greenhouse, a family-owned greenhouse business previously operated by his wife. The employee continued to work in this business until March 2010.
In January 1999, the employee saw Dr. Bruce Bartie, complaining of low back and left leg pain. The doctor diagnosed L5-S1 spondylosis. The employee did not improve with conservative care and in August 1999, Dr. Bartie performed an anterior fusion with instrumentation at L5-S1 using a bone graft. Travelers Group paid these medical expenses.
The employee returned to see Dr. Bartie in October 2005 complaining of a sudden onset of left radicular leg pain several months previously. An MRI scan showed a left-sided disc protrusion at L4-5 with left foraminal stenosis. In November 2005, Dr. Bartie performed an L4-5 microdiscectomy.
In January 2010, the employee again developed left leg pain. A lumbar MRI scan showed a new large extruded disc herniation at L4-5 compressing the thecal sac and the left L5 nerve root. In March 2010, Dr. Bartie performed a left L4-5 microdiscectomy. The employee’s symptoms did not improve following surgery. Dr. Bartie ordered another MRI scan which showed a left-sided disc protrusion at L4-5 resulting in severe stenosis with impingement and displacement of the L5 nerve root with bilateral facet arthropathy. In October 2010, Dr. Bartie performed an L4-5 fusion with a decompression and microdiscectomy.
By report dated February 10, 2011, Dr. Bartie stated the employee’s November 1984 injury caused degenerative changes and a subsequent failure of the L4-5 disc. Dr. Bartie opined the employee’s 1984 injury was a substantial contributing cause of his need for the three surgeries performed in November 2005, March 2010, and October 2010. The doctor concluded the employee’s restrictions precluded him from returning to work at Black’s Greenhouse and stated the employee was unable to do anything more than sedentary work on a part-time basis. The doctor rated the employee with a 45.5% whole body disability.
In 2011, the employee filed a Medical Request seeking payment for medical expenses incurred from and after October 2005. Planesman Construction and Travelers had the employee evaluated by Dr. Paul Wicklund who opined that the employee’s treatment since 2005 was reasonable and necessary. The doctor opined the employee’s work activities at Black’s Greenhouse resulted in a Gillette-type personal injury. Dr. Wicklund apportioned the employee’s need for medical care and treatment since 2005 equally to the 1984 injury and a Gillette injury at Black’s Greenhouse.
The employee’s claim for medical expenses was heard by Compensation Judge Harold W. Schultz. In a findings and order dated September 7, 2011, the judge found the employee sustained two Gillette injuries arising out of his employment activities at Black’s Greenhouse, one culminating on November 7, 2005, and the second in January 2010. The judge found Planesman Construction and Travelers were liable for 80% of the cost of the November 7, 2005, surgery and 70% of the cost of the employee’s treatment from and after January 2010. The judge noted the employee did not elect to be covered for workers’ compensation liability at Black’s Greenhouse. Citing Pearson v. Foot Transfer, 301 Minn. 489, 221 N.W.2d 710, 27 W.C.D. 535 (1974), the judge concluded that Planesman Construction and Travelers were liable only for their proportional share of the medical expenses. No party appealed from the judge’s findings and order.
The employee then filed a petition to vacate the July 1986 award, contending there has been a substantial change in his medical condition since the time of the award. The employer and insurer object to the employee’s petition.
The employee’s petition to vacate an award on stipulation is controlled by the statute in effect in 1986, the date of the stipulation in this case. Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (1993). Minn. Stat. § 176.421 (1986) provides that this court may set aside an award for cause. Good cause for setting aside an award exists if there has been a substantial change in the employee’s condition. Wollschlager v. Standard Constr. Co., 300 Minn. 550, 220 N.W.2d 346, 27 W.C.D. 495 (1974). In determining whether there has been a substantial change in the employee’s condition, this court may consider numerous factors including a change in diagnosis, a change in the employee’s ability to work, additional permanent partial disability, more costly and extensive medical care, a causal relationship between the injury covered by the settlement and the employee’s worsened condition, and the contemplation of the parties at the time of settlement. Fodness v. Standard Cafe, 41 W.C.D. 1054 (1989).
The employee asserts there has been a substantial change in his medical condition since the July 1986 award on stipulation. The 1984 injury necessitated a L5-S1 laminectomy. Thereafter, the employee contends, the injury caused disc herniations at the L4-5 level requiring further surgeries. At the time of the settlement, the employee was able to work on a full-time basis, subject to restrictions on lifting, bending, twisting, and prolonged sitting. Currently, Dr. Bartie has limited the employee to sedentary, part-time work. The employee asserts there has been a change in his diagnosis and he has sustained increased permanent partial disability, substantially more medical treatment and expense, and a change in his ability to work. All of the changes, the employee contends, were caused in substantial part by the 1984 personal injury. Accordingly, the employee contends the 1986 award should be vacated.
We agree the employee has established that there has been a change in his diagnosis and a diminution in his ability to work, and that he has sustained additional permanent partial disability and more costly and extensive medical care. Dr. Bartie and Dr. Wicklund both opined the employee’s 1984 injury was a substantial contributing factor to the initial disc injury at L5-S1 and the subsequent degenerative changes and failure of the L4-5 segment. These conditions necessitated multiple surgeries and resulted in the employee’s inability to continue working at Black’s greenhouse. Compensation Judge Schultz found the 1984 injury was a substantial contributing cause of the employee’s need for medical care since 2005. Accordingly, there exists a causal relationship between the 1984 injury and the employee’s worsened condition.
The employer and insurer concede that the employee’s diagnosis has changed and that he has sustained increased permanent partial disability, substantially more medical treatment and expenses, and a change in his ability to work. The employer and insurer, nonetheless, assert this is not a proper case for a vacation of the award. Planesman Construction and Travelers cite Johnson v. Tech Group, Inc., 491 N.W.2d 287, 47 W.C.D. 367 (Minn. 1992) which holds that where an employee settles a case with one employer and insurer and then sustains a new work injury with a different employer and insurer, the second employer and insurer become liable for full payment of any benefits due the employee. The employee sustained two personal injuries while working at Black’s Greenhouse and these injuries were found to be a substantial contributing cause of the employee’s need for surgery in 2005 and thereafter. The respondents concede the employee likely cannot recover benefits from Black’s Greenhouse because he did not elect workers’ compensation coverage during that employment. They argue, however, the employee should have elected workers’ compensation coverage while employed with Black’s to protect himself from the possible consequences of a new work injury. The employer and insurer argue they should not be penalized because the employee failed to cover himself and now has no recourse against Black’s. Accordingly, Planesman Construction and Travelers ask this court to deny the employee’s petition to vacate.
In Johnson v. Tech Group, the employee sustained multiple personal injuries with a number of employers which he later settled, leaving open claims for medical benefits. Following the settlement, the employee sustained another personal injury with a new employer, Tech Group, and brought a claim against it seeking benefits for that injury. Tech Group sought to reduce its liability for wage loss benefits by the proportion of the disability attributable to the first injuries. The supreme court rejected that argument and held that Tech Group and its insurer were liable for full payment of any benefits due to the employee as a result of his second personal injury claim. In Kinnunen v. Brockway Glass, slip op. (W.C.C.A. Jan. 27, 2000), this court applied the principles enunciated in Johnson v. Tech Group to petitions to vacate. In Kinnunen, the employee sustained a personal injury working for Brockway Glass which she subsequently settled closing out all claims except medical expenses. The employee then sustained another injury with a different employer against whom the employee brought a claim and then sought to vacate the settlement with Brockway Glass. Citing the Johnson case, this court held that if the employee established that the second personal injury was a substantial contributing cause of her current disability, she would be entitled to full recovery from the second employer and insurer making it unnecessary and premature to vacate the settlement.
In this case, Compensation Judge Schultz found the employee sustained two personal injuries arising out of his employment at Black’s Greenhouse and found these personal injuries were a substantial contributing cause of the employee’s need for medical care from and after January 7, 2005. Planesman Construction and Travelers concede the employee’s injuries at Black’s occurred during employment with a family corporation for which workers’ compensation coverage was not statutorily mandated and was not elected. See Minn. Stat. § 176.041, subd. 1 and subd. 1a(a). Accordingly, they further concede the employee has no claim against Black’s Greenhouse. This court has held that where the employee has no potential of receiving full recovery for claimed benefits from the employer and insurer on the risk for subsequent injuries, Kinnunen is not applicable. Beckman v. Northside Constr., No. WC04-114 (June 1, 2004).
The purpose of Minn. Stat. § 176.461 is to assure that an injured employee receives compensation proportionate to the degree and duration of disability. Monson v. White Bear Mitsubishi, 663 N.W.2d 534, 63 W.C.D. 337 (Minn. 2003). Since the employee is unable to recover benefits from Black’s Greenhouse, a denial of the employee’s request to vacate the settlement with Planesman Construction and Travelers would thwart that statutory objective. The July 21, 1986, award on stipulation is, accordingly, vacated.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).