STANLEY R. MARTINSON, Employee/Petitioner, v. USX CORP., SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 1, 2000

 

HEADNOTES

 

VACATION OF AWARD - SUBSTANTIAL CHANGE IN CONDITION.  Where a compensation judge found that the employee=s diagnosis is essentially the same, that his ability to work has not changed and his current chemical dependency and psychological problems are not causally related to his 1978 injury, there was no basis to find cause to vacate the 1989 award on stipulation.

 

Petition to vacate award denied.

 

Determined by Wheeler, C.J., Johnson, J., and Pederson, J.

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employee petitions the court for vacation of the award on stipulation served and filed January 26, 1989, on the basis that there has been a substantial change in the employee=s condition and that there was a mutual mistake of fact with respect to the employee=s medical and psychological condition at the time of settlement in January 1989.  Based on findings by the compensation judge, which have not been appealed, we believe there is not a sufficient basis upon which to vacate the award on stipulation and the petition is denied.

 

BACKGROUND

 

The employee, Stanley Martinson, was employed by U.S. Steel Corporation as a truck driver on November 18, 1978, when he sustained an admitted work injury.  At the time, the employee was 25 years of age and had a weekly wage of $340.00.  On that date, while the employee was seated in his truck, he was struck on the left side of his face by a large rock which had been thrown up by another truck.  The employee sustained a fracture of a facial bone and a large laceration of his face, in addition to cervical injuries.^[1]

 

Since 1978 the employee has filed several claim petitions, alleging entitlement to wage loss benefits and permanent partial disability benefits, together with payment for medical expenses.  Partial settlements were reached with the employee in July 1986 and January 1989.  In addition, in 1994 a settlement judge rejected a proposed settlement which would have closed out the employee=s claims for future medical expenses.

 

On January 15, 1999, the employee filed an application to set aside the January 26, 1989 award on stipulation on the basis that since that date the employee had sustained a substantial change in his medical condition and that the stipulation for settlement was predicated on a mutual mistake of fact concerning the employee=s medical and psychological conditions at the time of settlement.  The self-insured employer objected to the petition to vacate on the basis that the employee=s medical condition had not changed substantially and that any physical or employment difficulties the employee may be having were not causally related to the 1978 injury. 

 

DECISION

 

The law in effect on the date of settlement is controlling for purposes of vacating an award on stipulation.  Franke v. Fabcon, Inc., 509 N.W.2d 373, 49 W.C.D. 520 (Minn. 1993).  ACause@ to vacate the award in the present case includes (a) fraud, (b) mistake, (c) newly discovered evidence, and (d) substantial change in condition.  Krebsbach v. Lake Lillian Coop. Creamery Ass=n, 350 N.W.2d 349, 353, 36 W.C.D. 796, 801 (Minn. 1984).  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) necessity of more costly and extensive medical care/nursing services than initially anticipated; (e) causal relationship between the injury covered by the stipulation and the employee=s current worsened condition; and (f) the contemplation of the parties at the time of the settlement.  Fodness v. Standard Café, 41 W.C.D. 1054, 1060-61 (W.C.C.A. 1989).

 

When this court initially considered the employee=s application, we noted that there were significant factual conflicts with respect to the Fodness factors, including the exact nature of the employee=s diagnosis, ability to work, permanency, need for medical attention and whether there is a causal relationship between the employee=s current condition and the 1978 injury.  On referral, the compensation judge resolved these factual disputes in each of these areas.  Based on his resolution, it is clear that there is no basis upon which to vacate the 1989 award on stipulation.

 

The compensation judge found that the employee=s diagnosis had not changed in any substantial way, that his ability to work had remained essentially the same, that he had a very small increase in permanency and that his chemical dependency and depression problems were not causally related to the 1978 injury.  None of these findings have been appealed by the employee.  As a result, we find there is no basis upon which to conclude that there has been a substantial change in the employee=s condition since the time of settlement.  Since the employee=s claim that there had been a mutual mistake of fact was predicated on the same facts underlying the substantial change in condition claim, there is no basis to vacate because of a mistake of fact.^[2]