BENGT V. THULIN, Employee/Petitioner, v. ANDERSON LOG HOMES and HERITAGE MUTUAL INS. COS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 1, 2000

 

HEADNOTES

 

VACATION OF AWARD.  The pro se employee failed to establish a sufficient basis to vacate the award on stipulation on the basis of newly discovered evidence, a substantial change in medical condition, or fraud, and the petition to vacate is accordingly denied.  The matter is referred to the Office of Administrative Hearings for consideration of the employee=s request for payment of medical expenses.

 

Petition to vacate award on stipulation denied.

Referred to OAH for further proceedings.

 

Determined by: Johnson, J., Rykken, J., and Pederson, J.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee petitions to vacate an Award on Stipulation filed April 5, 2000.  We deny the petition.

 

BACKGROUND

 

The employee, Bengt V. Thulin, injured his left knee on March 16, 1999, while working for Anderson Log Homes, the employer, insured by Heritage Mutual Insurance Companies.  The employer and insurer admitted liability for the employee=s personal injury and paid workers= compensation benefits to the employee.

 

On August 17, 1999, the employee, then represented by James B. Peterson, Esquire, filed a claim petition claiming an underpayment of temporary total disability benefits and medical transportation expenses.  The basis for the underpayment claim was a dispute about the employee=s weekly wage on the date of injury.  By Answer filed August 20, 1999, the employer and insurer denied liability for the claimed benefits.  The employee also filed a Medical Request seeking payment for physical therapy and requesting authorization for further physical therapy.  In a Decision and Order filed November 1, 1999, Judge Arnold ordered the employer and insurer to pay for the physical therapy and found additional physical therapy was reasonable and necessary.  (Judgment Roll.)

 

On December 1, 1999, the employer and insurer filed a Petition to Discontinue contending the employee was able to return to work without restrictions, the employee had reached maximum medical improvement and the employee had failed to diligently search for work.  By letter dated December 15, 1999, Mr. Peterson withdrew as the employee=s attorney.  (Schmidt Affidavit.)^[1]  A hearing on the Petition to Discontinue was scheduled for March 15, 2000, before Compensation Judge Gregory A. Bonovetz. 

 

The morning of the hearing, Judge Arnold mediated a settlement between the pro se employee and Richard W. Schmidt, counsel for the employer and insurer.  (Schmidt Affidavit.)  In a proceeding before Judge Bonovetz, Mr. Schmidt then read the proposed settlement into the record.  (Schmidt Affidavit; Ex. A.)  On April 4, 2000, the parties entered into a Stipulation for Settlement in which the employee agreed to accept the sum of $14,900.00 in full, final and complete settlement of all claims arising out of the March 16, 1999 personal injury except claims for future medical expenses for the left knee injury.  The employer and insurer further agreed to Ahold the Employee harmless with regard to any outstanding medical bills that he has incurred to date with regard to care and treatment of his left knee including, but not necessarily limited to, any outstanding bills with Itasca Medical Center, Terry Radovich, M.D./Grand Rapids Clinic and Itasca Physical Therapy.@  (Stipulation for Settlement.)  The employer and insurer further agreed to hold the employee harmless Awith regard to medical expenses for the arthroscopic surgery referred to herein in the nature of a lateral release and patellar shaving.@  (Stipulation for Settlement.)  An Award on Stipulation was filed April 5, 2000.

 

By letter dated June 18, 2000, the employee wrote to Judge Bonovetz contending the insurer had failed to make payment of certain outstanding medical expenses including Itasca Medical Center, Grand Rapids Clinic and membership at the YMCA.  (Ex. C.)  In a responsive letter dated June 23, 2000, Mr. Schmidt stated the outstanding medical expenses either had been paid or would be paid upon receipt of billing.  (Ex. D.)

 

By letter dated July 8, 2000, the employee wrote to the Workers= Compensation Court of Appeals.  The employee contended the employer and insurer failed to pay the outstanding bill with Itasca Physical Therapy and asked the court to vacate the Award on Stipulation of April 5, 2000.  On August 7, 2000, Mr. Schmidt filed his affidavit with attached exhibits and an objection to the employee=s Petition to Vacate.  By letter dated August 13, 2000, the employee objected to the response of the employer and insurer contending it was not timely filed.  The employee also attached a Work Status Report from the Grand Rapids Clinic stating the employee should be off work due to the effects of his personal injury.

 

DECISION

 

Responsive Pleadings

 

The employee filed a Petition to Vacate on July 13, 2000.  The employer and insurer filed their responsive pleadings on August 7, 2000.  The employee contends the employer and insurer=s responsive pleadings were not timely filed citing Minn. Stat. ' 176.321, which requires answers to be filed within 20 days after service of the petition.  That statute is not applicable here.  Rather, Minn. Stat. '' 176.461 and 176.521, and the rules adopted thereunder, govern petitions to vacate before the Workers= Compensation Court of Appeals.  Minn. R. 9800.1100, subp. 3, provides that responses and other pleadings must be served upon all parties and filed with the court within 45 days after the filing of an application.  The employer and insurer=s response was filed within the required 45-day period, and was, therefore, timely filed. 

 

Petition to Vacate

 

Minn. Stat. '' 176.461 and 176.521, subp. 3, govern this court=s authority over petitions to vacate.  An employee must establish cause for us to exercise this authority.  The cause alleged by the employee in this case is newly discovered evidence, fraud and/or a substantial change in medical condition since the time of the award that was not clearly anticipated and could not reasonably have been anticipated at the time of the award.

 

Newly Discovered Evidence

 

To grant relief on the grounds of newly discovered evidence, the following requirements must be satisfied:

 

(1)        the evidence must be relevant and admissible;

(2)        the evidence, although in existence at the time of award, could not have been discovered with the exercise of reasonable and due diligence;

(3)        the evidence is not merely collateral, impeaching, cumulative, or duplicative; and

(4)        the evidence must be such to have had a probable effect upon the outcome of the litigation.

 

Gruenhagen v. Larson, 310 Minn. 454, 459, 246 N.W.2d 565, 569 (Minn. 1976); Brown v. Bertrand, 254 Minn. 175, 94 N.W.2d 543 (Minn. 1959); Regents of the University of Minn. v. Medical, Inc., 405 N.W.2d 474, 478 (Minn. App. 1987), pet. for review denied (Minn. July 15, 1987).

 

The sole medical evidence presented by the employee in support of his petition to vacate is a work status report from the Grand Rapids Clinic dated July 20, 2000.  This report was not in existence at the time of the Award on Stipulation and is not, therefore, newly discovered evidence.  Daly v. National Steel Pellet Co., slip op. (W.C.C.A. Sept. 16, 1994).  At the time of the settlement, the employee contended he was totally disabled based on the records of Dr. Radovich.  In his July 20, 2000 report, Dr. Radovich diagnosed instability and weakness of the left quadriceps and knee and stated the employee should be off work for an undetermined period of time.  The July 20, 2000 work status report is merely cumulative and affords no new medical information.  Accordingly, the report would not have had a probable effect on the outcome of the litigation.  We therefore deny the employee=s petition to vacate on the basis of newly discovered evidence.

 

Substantial Change in Medical Condition

 

In determining whether a substantial change in the employee's condition has occurred, this court in the past has examined factors such as:

 

(1)        Change in diagnosis.

(2)        Change in employee's ability to work.

(3)        Additional permanent partial disability.

(4)        Necessity of more costly and extensive medical care/nursing services than initially anticipated.

(5)        Causal relationship between injury covered by the settlement and current worsened condition.

(6)        Contemplation of parties at time of settlement.

 

Fodness v. Standard Café, 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."  See also, Soeffner v. McGuire's Motor Inn, 40 W.C.D. 21, 22 (W.C.C.A. 1987) (medical proof that condition was unanticipated is necessary to show substantial change in medical condition).

 

The employee lacerated his left knee with a chain saw on March 16, 1999.  Dr. Custer surgically cleaned and sutured the laceration and the employee thereafter treated with Dr. Terry J. Radovich who took the employee off work and ordered physical therapy.  On May 11, 1999, Dr. Radovich diagnosed a healed laceration of the left lower extremity with decreased range of motion secondary to the injury.  The doctor ordered intensive physical therapy.  On August 2, 1999, the doctor ordered four more weeks of physical therapy followed by a functional capacity examination.  On September 10, 1999, the employee was examined by Dr. Stephen Barron at the request of the employer and insurer.  His diagnosis was a healed laceration to the medial aspect of the employee=s left knee with some atrophy of the left thigh.  Dr. Barron opined the employee was not totally disabled and was able to return to work without restriction or limitation.  Finally the doctor opined the employee needed no further medical care other than a self-directed exercise program to strengthen his quadriceps muscles.^[2]

 

The employee=s initial diagnosis was a laceration of the left knee with resultant loss of range of motion and quadriceps weakness.  No evidence has been submitted by the employee to establish any change in that diagnosis subsequent to the award on stipulation.  At the time of the award, the employee contended he was totally disabled.  The employer and insurer disputed that contention based on the report of Dr. Barron.  The employee has established no change in his  ability to work since the time of the award on stipulation.  There is no evidence of any additional permanent partial disability.  There is no evidence of the need for more costly or extensive medical care than initially anticipated.  In any event, claims for medical expenses were not foreclosed by the stipulation.  We conclude the employee has failed to establish any substantial change in his condition since the time of the award on stipulation, and deny vacation on that basis. 

 

Fraud

 

Although it is less than clear from the employee=s documentation, his allegation of fraud is apparently based on the assertion that the employer and insurer have failed to pay certain medical expenses.  These unpaid medical expenses apparently include charges for treatment rendered both before and after the award on stipulation.  (Schmidt Affidavit; Ex. C.)  With respect to medical treatment after the date of the award, the stipulation for settlement specifically provides that claims for future medical expenses remain open with regard to the employee=s left knee.  The employee is, therefore, free to file a Medical Request to assert claims for any medical treatment rendered after April 5, 2000.

 

The employee also contends the employer and insurer have failed to pay for medical treatment rendered prior to April 5, 2000, contrary to the terms of the stipulation.  The employer and insurer apparently agree some of those expenses remain unpaid.^[3]  The respondents argue, however, such failure does not constitute statutory cause to vacate the settlement since the employee has been held harmless by the insurer from any liability for such unpaid bills. 

 

The supreme court has enumerated the following elements of fraud:  (1) a false representation of facts; (2) the representation must deal with a past or present fact; (3) the fact must be susceptible of knowledge; (4) the representing person must know the fact is false; (5) the representing party must intend that another be induced to act based on the false representation; (6) the other person must in fact act on the false representation; and (7) the misrepresentation must be the proximate cause of actual damages.  Weise v. Red Owl Stores, Inc., 286 Minn. 199, 202, 175 N.W.2d 184, 187, (1970).  The facts here do not support the necessary elements of fraud.  The employee=s petition to vacate is, therefore, denied.

 

However, although we conclude the pro se employee has failed to establish cause to vacate the award on stipulation, we believe his petition is more akin to a medical request seeking payment of medical expenses.  In Brooks v. A.M.F., Inc., 278 N.W.2d 310, 31 W.C.D. 521 (Minn. 1979), the supreme court held that third-party medical insurers or providers must be given notice of their right to intervene and included in settlement negotiations which result in a settlement between the insurer and the employee.  The court cautioned that in Athe rare case where the intervenor refuses to agree to the settlement arrived at by the employee and the employer-insurer, the basis therefore should be disclosed in the award proceedings before the approving officer to be considered in determining whether a settlement is >reasonable, fair and in conformity with the law.=@  Id. at 316, 31 W.C.D. at 533.  There is no evidence in the Stipulation for Settlement or the Award on Stipulation that Itasca Physical Therapy was notified of its right to intervene or whether its claim for payment was considered at the time of the settlement.  We acknowledge the employer and insurer held the employee harmless from these expenses in the Stipulation for Settlement.  In this case, however, the provision does not afford adequate protection to third-party payers.  See Brooks, id.; Parker/ Lindberg v. Friendship Village, 395 N.W.2d 713, 39 W.C.D. 125 (Minn. 1986).

 

In Burdick v. Inver Grove Ford, 55 W.C.D. 195 (W.C.C.A. 1996), summarily aff=d Sept. 24, 1996, this court declined to vacate a stipulation for settlement where a third-party payer and potential intervenor was not notified of its intervention right and not included in the settlement negotiations resulting in a settlement between the employer-insurer and the employee.  In doing so, we noted a third-party provider has no standing to initiate a claim, and is limited to intervention as a sole means of asserting a claim.  Id. at 198.  Similarly, in this case, we conclude there is no basis to vacate the award on stipulation.  Instead, we believe the employee=s pro se petition to vacate should be treated as a medical request.  We, accordingly, refer the case to Judge Bonovetz at the Office of Administrative Hearings for further proceedings.  Judge Bonovetz should determine whether any medical providers were not paid for services rendered on or before April 5, 2000 and, if so, the payment to which such providers may be entitled, if any.